A Civil Law to Common Law Dictionary
N. Stephan Kinsella*
(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 was derived in part from the Code of Napoleon of 1804.1 American common-law lawyers often encounter Louisiana’s civilian terms and concepts when dealing with lawsuits or transactions in Louisiana. No doubt they (and even Louisiana lawyers) are sometimes confused. How many common-law lawyers know of naked owners, usufructs, virile portions, vulgar substitutions, synallagmatic contracts, mystic testaments, antichresis, whimsical conditions, or lesion beyond moiety? Even many Louisiana-trained attorneys are unfamiliar with terms such as amicable compounder, jactitation, mutuum, and commodatum. Thus a dictionary of these and other civil law terms might come in handy to some practitioners. In the main table below, various Louisiana civilian concepts are defined, and correlated with common-law concepts where possible. The civilian terms defined in the table generally have some counterpart in common-law terminology, are interesting or unique Louisiana civilian concepts, are different uses of words than in the common law, or are simply used more often in Louisiana than in her sister states. Some of the Louisiana expressions discussed herein are used commonly in states other than Louisiana. Similarly, common-law terminology is used increasingly in Louisiana as a result of the influence 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 in Texas statutes.2 Therefore, many of the civil-law and common-law concepts discussed herein are sometimes used in a state with the other legal system. Usage of the Tables Terms printed in SMALL CAPS are discussed in separate entries in the table. A crossreferenced term such as PROCEDURE--POSSESSORY ACTION 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 are discussed together, they are placed alphabetically according to the spelling of the first term mentioned, and cross-references elsewhere in the table refer the reader to the appropriate location.
LL.M. (International Business Law) (1992), University of LondonCKing’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 State University. The author is an associate in the intellectual property section and international law practice group in the Houston 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: see www.KinsellaLaw.com.] The author would like to thank J. Lanier Yeates and Professor Robert Pascal for their helpful comments on an earlier draft of the article. Of course, any remaining mistakes are those of the author alone.
Civil Law to Common Law Dictionary · Kinsella
For example, the table entry “Collateral relations, Propinquity of consanguinity” discusses both these concepts, and is alphabetically sorted under the first term. Additionally, the separate table entry “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 provided listing significant common-law terms mentioned in the first table, and providing a correlation to the appropriate entry in the main table.
Civil Law Concept Absolute simulation Abuse of rights See SIMULATION.
AStated in general terms, the doctrine of abuse of rights provides that ‘fault’ in the DELICTUAL sense may be imposed upon a party who has exercised a right in a manner that has caused injury to another.”3 At least one of four conditions “is required to invoke the doctrine: (1) the predominant motive for exercising the right is to cause harm; (2) no serious or legitimate motive exists for exercising the right; (3) the exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is exercised for a purpose other than that for which it was granted.”4 See CONVENTIONAL OBLIGATION. The provision whereby the portion of an heir renouncing a succession goes to certain of his coheirs.5 See LIBERATIVE PRESCRIPTION. See CONVENTIONAL OBLIGATION. Alimentary duties are the reciprocal obligations of children and ascendants to maintain each other. The obligation is limited to basic necessities.6 See OBLIGATION. A type of arbitrator, “authorized to abate something of the strictness of the law in favor of natural equity.”7 See SERVITUDES. An arpent is an area equalling approximately 0.85 acres. It can also refer to the length of the side of a square arpent, or 191.83 feet.8
Accessory contract Accretion of renounced successions Acquisitive prescription Aleatory contract Alimentary duties
Alternative obligation Amicable compounder Apparent servitude Arpent
Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Authentic act
Definition A writing executed before a notary public or other authorized officer, in the presence of two witnesses, and signed by each party, by each witness, and by the notary public, all in the presence of each other.9 A bateau is a small, flat-bottomed boat, typically made of aluminum and often used on bodies of water in Louisiana for purposes such as hunting.10 A pirogue is similar to a canoe, used--and often raced--on swamps, rivers and bayous.11 Typical Cajun characters used in jokes, such as “Boudreaux and Thibodeaux were fishing one day . . . .” When a third character is needed, Pierre, Tee-Boy, or Arceneaux are often used.12 See COONASS. Caducity is a failure or lapse of a testamentary gift, for example, where a TESTAMENT is revoked by the subsequent birth of a LEGITIMATE child to the testator, unless the testator has made testamentary provision to the contrary or has made testamentary provision for such child.13 A CONVENTIONAL OBLIGATION (i.e., those that arise from contracts) cannot exist without a lawful cause. Cause is the reason why a party obligates himself.14 Cause is not the same thing as consideration. “The reason why a party binds himself need not be to obtain something in return or to secure an advantage for himself. An obligor may bind himself by a gratuitous contract, that is, he may obligate himself for the benefit of the other party without obtaining any advantage in return.”15 See FRUITS. Often, the term civil law refers to laws concerned with private rights and remedies, as opposed to criminal laws. In Louisiana, however, “civil law” (or “civilian” or related expressions) is usually used to distinguish a system of law based upon the Roman legal tradition from a system based on the English common law. A civil law lawyer is also referred to as a civilian.16 Once possession of a THING is acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess CORPOREALly. This is known as
Boudreaux and Thibodeaux
Civil Fruits Civil law, Civilian
Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition civil possession, and is similar in some respects to constructive possession.17 Collaterals are relatives of one another who descend from a common ancestor.18 The number of degrees or generations separating two collaterals via a common ancestor is the propinquity of consanguinity. The number of degrees is equal to the number of generations between the heir and the common ancestor, plus the number of generations between the common ancestor and the deceased.19 A collateral mortgage note is a note secured by a mortgage, itself called a collateral mortgage, where the note is pledged to secure a principal obligation. The principal obligation secured by the pledged collateral mortgage note is often evidenced by a note, called the hand note. The collateral mortgage note, the collateral mortgage, and any written pledge agreement are called the collateral mortgage package. See PARAPH; CONVENTIONAL OBLIGATION--PRINCIPAL CONTRACT. Collation of goods is the return to the succession of property that an heir received in advance of his share, so that the property may be divided properly among heirs. Goods are collated because it is presumed that the testator intended equality among his descendants, so that the goods were given as an advance upon what the descendants could expect from the testator’s succession.20 A commodatum, also called a loan for use, is an agreement by which a person delivers a thing to another, to use the thing and then to return it after he is done using it. A mutuum, or loan for consumption, is an agreement by which one person delivers to another a certain quantity of things that are consumed by their use, under the obligation, by the borrower, to return to the other as much of the same kind and quality.21 See CONSUMABLES, NONCONSUMABLES. Common THINGS, similar to communia or commons, such as air and the high seas, may not be owned by anyone. Public things, similar to public domain, public lands, or common property, such as running waters and the seashore, are owned by the state in its capacity as a public person. Private
Collateral relations, Propinquity of consanguinity
Collateral mortgage, Collateral mortgage note, Collateral mortgage package, Handnote
Common, Public, and Private things
by an act translative of ownership and delivery to acquirers in good faith. See PROCEDURE. and extinguishes both obligations to the extent of the lesser amount. Compensation. Similar to merger of title.27 An owner may deimmobilize the component parts of an immovable.
Community of acquets and gains. and are similar to private property. without any possibility of ascertaining who died first.23 The community of acquets and gains is the communityproperty matrimonial regime in Louisiana. such as a wreck. Community property
Commutative contract Compensation
Component parts. standing timber. thereby giving them the status of distinct movables. Component parts of immovables are immovables. See OBLIGATION.25 Buildings. takes place by operation of law when two persons owe to each other sums of money or quantities of fungible THINGS identical in kind.28 See TRANSACTION. Commorientes is also used to refer to the dying persons themselves. under which spouses are co-owners of certain property that either acquires during the marriage. are owned by individuals. Deimmobilization of component parts
Compromise Concursus Conditional obligation Confusion
. or by detachment and removal of the component parts.22 Commorientes is the phenomenon of several persons respectively entitled to inherit from one another dying simultaneously in the same event. other private persons. a residuary category. which resembles set-off. other constructions permanently attached to the ground. and unharvested crops or ungathered FRUITS of trees. and by the state or its political subdivisions in their capacity as private persons.24 See CONVENTIONAL OBLIGATION. are component parts of a tract of land if they belong to the owner of the ground. A PREDIAL SERVITUDE is extinguished by confusion when the dominant and the servient estates are acquired in their entirety by the same person.26 Component parts are similar to fixtures.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
32 A contract is a synallagmatic or bilateral (or reciprocal) contract when the parties obligate themselves reciprocally. and Nominate and Innominate contracts
. for the performance of an obligation. Conventional obligations arise from contracts.34 See CAUSE. Principal and Accessory. or the extent of the performance. Aleatory. Consumable THINGS are those that cannot be used without being expended or consumed. which make a contract bilateral.36 See SUSPENSIVE CONDITION.31 although contracts are themselves sometimes erroneously referred to as conventional obligations. A distinction is made between correlative obligations.35 A contract is aleatory when the performance of either party’s obligation.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition When the qualities of obligee and obligor are united in the same person. shares of stock. Similar to merger of rights or extinguishment. furniture. houses. and correlative performances. or without their substance being changed. Nonconsumable things are those that may be enjoyed without alteration of their substance.37
Conjunctive obligation Consumables. foodstuffs. Commutative. Nonconsumables
Conventional obligation. A contract is commutative when the performance of the OBLIGATION of each party is correlative to the performance of the other. Onerous.33 A contract is onerous when each of the parties obtains an advantage in exchange for his obligation. that contract is the principal contract. and beverages.29 See OBLIGATION.30 See COMMODATUM. such as mortgage or pledge. animals. Synallagmatic. such as lands. If the secured obligation arises from a contract. although their substance may be diminished or deteriorated naturally by time or by the use to which they are applied. so that the obligation of each party is correlative to the obligation of the other. A contract is accessory when it is made to provide security. An exchange is the very essence of an onerous contract. depends on an uncertain event. the obligation is extinguished by confusion. such as money. which make the contract not only bilateral but also commutative. and vehicles.
lease. The function of the declinatory exception is to decline the jurisdiction of the court. The corporeal/incorporeal distinction is similar to the distinction between tangibles and intangibles.42 See SIMULATION.g. Corporeals are THINGS that have a body. See GIVING IN PAYMENT. and intellectual property rights.44
Conventional or voluntary servitude Coonass
Co-owners Corporeals. although redneck seems to have an especially offensive or derogatory meaning. Slang for the Acadians or Cajuns in Louisiana. or insurance. Dilatory exception. many Cajuns happily refer to themselves as coonasses.43 See SERVITUDES.39 Two of their favorite leisure activities are eating boiled crawfish and listening to zydeco music. Innominate contracts are those with no special designation.40 A common-law analog to coonass might be redneck. See DELICTS.41 See INDIVISION. such as sale. This exception does not tend to defeat the action. See TUTORSHIP. such as the rights of inheritance. Peremptory exception
. and can be felt or touched. e. While some consider the term to be derogatory. but are comprehended by the understanding. improper venue. improper service of process.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition Nominate contracts are those given a special designation. Incorporeals
Counter-letter Curatorship Damages ex delicto Dation en paiement Dative tutorship De cujus Declaration of destination Declinatory exception. Incorporeals are things that have no body. obligations. for lis pendens. Decedent. whether animate or inanimate.38 See SERVITUDES. See INTERDICTION. servitudes. loan. incorporeal property is also similar in some respects to a chose in action. or lack of personal or subject matter jurisdiction. while coonass does not.
or any other IMMOVABLE property. nonjoinder of an indispensable party. are those damages arising from delicts.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition A dilatory exception retards the progress of a lawsuit. vagueness of the petition. or delictual damages. but does not tend to defeat the action. res judicata. Equivalent to torts. Delictual Destination. Damages ex delicto. See OBLIGATION. See DECLINATORY EXCEPTION. Process by which FORCED HEIRS may be deprived of their 48 LEGITIME. and no right of action. Under this test. See SERVITUDES. See PROCEDURE. and stipulates that the
Disposable portion Divisible obligation Duty-risk analysis
. and nonjoinder of a necessary party. See COMPONENT PARTS. or barred by effect of law. See UNWORTHINESS OF HEIRS. the question asked is: “[D]oes this defendant owe a duty to protect this plaintiff from this risk which occurred in this manner?”49 The contract of rent of lands. Test used by Louisiana courts to determine whether there is negligence. See LEGITIME. no cause of action. Similar to disinheritance. which collapses the common law’s duty and proximate cause into essentially one question. and hence this exception tends to dismiss or defeat the action. Damages ex delicto. is a contract by which one of the parties conveys to the other a tract of land. Examples include PRESCRIPTION.
Defendant Deimmobilization of component parts Delicts. or emphyteusis. Examples include prematurity. servitude by Devolutive appeal Dilatory exception Disinherison
See PLAINTIFF AND DEFENDANT.47 See ABUSE OF RIGHTS.46 Not to be confused with PEREMPTION.45 The function of a peremptory exception is to have the plaintiff’s action declared legally nonexistent.
or of a certain quantity of FRUITS.53 A report or explanation of the motives or reasons for passing a given statute.” They are different from vulgar substitutions. Fruits are THINGS that are produced by or derived from another thing without diminution of its substance. Instituted heir or legatee
Forced heirship Fruits. executory proceedings are the most expeditions means of enforcing a mortgage. The Civil Code similarly bans fideicommissary substitutions. a devise whereby a grantor could transfer property to his grantee with the condition that the grantee would transfer the property to a third party upon the happening of a certain condition.56
Executory process. except as permitted under laws relating to trusts. and civil fruits are revenues derived from a thing by operation of law or by reason of a juridical act. which is allowed. Fideicommissary Substitutions. Fideicommissary substitutions were. Vulgar Substitutions. is a direct substitution in which a testator provides for a substitute legatee. before the French revolution. in the event that the first legatee. Civil Fruits
See LEGITIME.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition latter shall hold it as owner. which the common law regulated via the Rule Against Perpetuities. but reserving to the former an annual rent of a certain sum of money. the creditor must first obtain a judgment against the mortgagor and then execute the judgment.54 See LEGITIME. Natural fruits are products of the earth or animals.51 When enforcing a mortgage by ordinary proceedings. such
. Executory proceeding
Exposé des Motifs Falcidian portion Fidei commissa.52 Thus. and are either natural or civil fruits. to enforce a mortgage or other PRIVILEGE. This restriction on property transfers is known in the common law as the problem of mortmain or “dead hand” control. and are prohibited.55 A vulgar substitution.50 A proceeding used to effect the seizure and sale of property. without previous citation and judgment against the debtor. Substitutions that are prohibited are generally termed “substitutions. does not accept the legacy (or if the instituted heir predeceases the testator). Natural Fruits. called the instituted heir or legatee. which the other party (the emphyteuta) binds himself to pay him.
in payment of a sum which is due. See FIDEI COMMISSA. See LEGITIMATE AND ILLEGITIMATE CHILDREN. Co-owners
Innominate contract Instituted heir or legatee Interdiction.62 See LIBERATIVE PRESCRIPTION. See PROCEDURE. each having an undivided share. or Dation en paiement Habitation Handnote Heritable obligation Homologation Hypothecary action. Ownership in indivision. Movables
Incidental demand Incorporeals Indivisible obligation Indivision. who is willing to receive it. See CORPOREALS.58 See SERVITUDES. a judgment of interdiction appoints a curator and undercurator to care for the person and his estate. and movables are similar to personalty or personal property. More frequently used common-law terms are tenants in common and joint tenants. interest. Similar to accord and satisfaction.59 See PACT DE NON ALIENANDO. Immovables are similar to realty or real property. See OBLIGATION. DEIMMOBILIZATION.61 See CONVENTIONAL OBLIGATION. See COLLATERAL MORTGAGE. Hypotheca. Hypothec
Definition as rentals. A hypothecary action is instituted to enforce a mortgage.60 Also called immovable and movable property.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Giving in payment. See OBLIGATION. Curatorship
Interruption and Suspension of prescription
. Similar to commitment of a habitually insane or imbecilic person. even if the property has been sold by the mortgagor to a third party. and certain corporate distributions.57 Act by which a debtor gives a THING to the creditor. See COMPONENT PARTS. See PROCEDURE.
Illegitimate children Immovables. Two or more persons may own the same THING in indivision. sometimes called a contract of hypotheca (or hypothec).
similar to slander of title. and the rule of law upon which they are based is entitled to great weight in subsequent decisions.”64 Although similar to stare decisis. now included with the POSSESSORY ACTION. is an action to remedy this defamation or disturbance of title. either before or after the marriage. under the regime of forced heirship.67 Forced heirs are descendants of the deceased who are socalled because. See USUFRUCT.e.. or made legitimate. when. Unlike stare decisis. called the
Legitime. in certain cases. they are entitled to a certain portion of their parent’s estate. AHowever. who are not later legitimated. See NATURAL PERSONS. Children are either legitimate or illegitimate. Falcidian portion. civil law] legal method. AIn Louisiana. Legitimation
See SERVITUDES. whenever the parents have formally or informally acknowledged them as their children. courts are not bound by the doctrine of stare decisis. a rule of law has been accepted and applied by the courts.’”65
Joint obligation Juridical persons Jurisprudence constante
Legal servitude Legal usufruct Legitimate and Illegitimate children. these adjudications assume the dignity of jurisprudence constante. See OBLIGATION. The jactitatory action.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Jactitatory Action
Definition Jactitation is a false claim repeated to the prejudice of another’s right. Disposable portion
. Illegitimate children are those who are conceived and born out of marriage. but there is a recognition in this State of the doctrine of jurisprudence constante.63 See PROCEDURE--POSSESSORY ACTION.e.66 Illegitimate children are legitimated. common-law] and the Continental [i. Forced heirship. “The difference between stare decisis and jurisprudence constante ‘is of such importance that it may be said to furnish the fundamental distinction between the English [i. by repeated decisions in a long line of cases. this latter doctrine does not contemplate adherence to a principle of law announced and applied on a single occasion in the past. for example by the subsequent marriage of their father and mother..
was to protect the institutions of the family and its gods. and acquisitive prescription is interrupted when possession is lost. Prescription of nonuse. the time that has run is not counted. Interruption and Suspension of Prescription
A seller can rescind a sale for lesion beyond moiety if he receives less than half the value of the THING sold.70 Similar to tolling of a statute of limitations. or legitimate portion.68 See DISINHERISON. If a
. for example. For example. as in the regime of forced heirship.69 See SOLIDARY LIABILITY.71 If prescription is interrupted. prescription is interrupted when a lawsuit is filed in the proper court. In another usage. rather than to benefit the testator’s heirs directly. prescription may be suspended in certain situations. under Roman law. Acquisitive prescription. Prescription of nonuse is a mode of extinction of a REAL RIGHT other than ownership as a result of failure to exercise the right for a period of time. The purpose of the falcidian portion.72
A right is litigious whenever there exists a suit contesting the right. litigious rights are those which cannot be exercised without undergoing a lawsuit. See PEREMPTION. Similar to acquiring title through adverse possession under the statute of limitations. had to be reserved to the INSTITUTED HEIR. as it is not subject to the legitime. forced portion. Similar to the statute of limitations.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition legal portion. The falcidian portion is one-fourth of the testator’s estate that.
Lesion beyond moiety Liability in solido Liberative prescription. Liberative prescription is a mode of barring actions as a result of inaction for a period of time. Acquisitive prescription is a mode of acquiring ownership by possession for a period of time. where prescription is suspended as between spouses during marriage. which was abolished in Louisiana. and prescription begins to run anew from the last day of the interruption. The disposable portion is the portion of an estate that a testator may freely dispose of. legitime.
the owner of land generally owns the minerals underneath it. See USUFRUCT. together with interest from its date. In Louisiana. Mandate. A principal difference is that the mineral servitude will be extinguished.78 See IMMOVABLES. creating a mineral servitude. (Louisiana treats partnerships as entities
. See TESTAMENTS. Mineral servitude
Moral damages Movables Mutuum Mystic or Sealed testament Naked owner Natural Fruits Natural obligation Natural persons. See FRUITS. In Louisiana. creating separate surface and mineral estates. Juridical persons
Moral damages are damages for nonpecuniary loss recoverable under a breached contract in certain situations.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition litigious right is sold. Juridical persons are entities with legal personality.77
Lump sale Mandatary.73 See SALES. Synonymous with agency. whereas a mineral estate is a (perpetual) estate in land. if the mineral estate has not been severed. to transact for him and in his name. such as corporations or partnerships.75 In the common law. A mandate or procuration is an act by which one person gives power to another. Natural persons are human beings. the minerals may be severed from the surface. the landowner can convey the right to produce minerals to another. See OBLIGATION. Procuration
Marital portion Minerals. after ten years of non-use.76 Under common law. the person owing the correlative obligation or duty may be released by paying to the transferee the real price of the transfer. known as the mandatary or agent.74 A portion of a deceased spouse’s succession to which the surviving spouse is entitled. See COMMODATUM. the owner of land generally owns only the right to produce minerals underneath the land. through LIBERATIVE PRESCRIPTION.
An obligation is strictly personal when its performance can be enforced only by the obligee. in the affairs of another. Conjunctive and Alternative obligations. Similar to moral consideration. Negotiorum gestor
Definition distinct from their partners. whatever has been freely performed in compliance with a natural obligation may not be reclaimed. When there are multiple obligees and/or obligors.)79 See PARAPH.81 A real obligation is a duty correlative and incidental to a 82 REAL RIGHT. A type of spontaneous agency or interference by a person. (See REPETITION. Joint.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Ne Varietur Negotiorum gestio.) An example of a natural obligation is an obligation that has been extinguished by PRESCRIPTION or discharged in bankruptcy. An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor. See SERVITUDES. unlike some other states. the
Nominate contract Non-alienation pact Nonapparent servitude Nonconsumables Nuncupative or Open testament Objective novation Obligations: Natural obligation. and Solidary obligations.83 A conditional obligation is one dependent on an uncertain event. See SUBJECTIVE AND OBJECTIVE NOVATION. and a contract made for the performance of a natural obligation is ONEROUS. Divisible and Indivisible obligations
. Conditional obligation.80 See MANDATARY. Heritable and Strictly personal obligation. Real obligation. and without authority. See TESTAMENTS. called a negotiorum gestor. in his absence. however. See RESOLUTORY AND SUSPENSIVE CONDITIONS. It may not be enforced by judicial action. from benevolence or friendship. See PACT DE NON ALIENANDO. See CONSUMABLES. or only against the obligor. See CONVENTIONAL OBLIGATION. Several. A natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance.
An obligation is solidary for each of the obligees when it gives each obligee the right to demand the whole performance from the common obligor. or solidary.”88 See HYPOTHECARY ACTION. in which case each item is the object of a separate obligation. the obligation is several. and giving him the right to seize and sell the mortgaged property. is not susceptible of division. VIRILE SHARE OR PORTION. An obligation is conjunctive when it binds the obligor to multiple items of performance that may be separately rendered or enforced. alienate.84 See SOLIDARY LIABILITY.
.87 An example is “The mortgagors hereby agree in solido not to sell. An obligation is alternative when an obligor is bound to render only one of two or more items of performance. because of its nature or because of the intent of the parties.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
Definition obligation may be several. See INDIVISION.85 An obligation is divisible when the object of the performance is susceptible of division. An obligation is indivisible when the object of the performance.”86
Oblique action Olographic testament Onerous contract Open testament Ownership in indivision Pact de non alienando or Non-alienation pact
See REVOCATORY ACTION. regardless of any subsequent alienations. the obligation is joint for the obligors. When each of different obligors owes a separate performance to one obligee. or encumber said mortgaged property to the prejudice of this mortgage. See TESTAMENTS. joint. and “divisible or indivisible obligations” with the common law’s “entire or severable contracts. but neither is bound for the whole. See TESTAMENTS. See CONVENTIONAL OBLIGATION. deteriorate. A clause in a mortgage giving the mortgagee the right to foreclose by EXECUTORY PROCESS directed solely against the mortgagor. When different obligors owe together just one performance to one obligee. Courts have occasionally confused divisible with conjunctive obligations.
”91 Paraphing is no longer required for EXECUTORY PROCESS.90 The phrase “ne varietur. the undersigned Notary. the court will decree a partition by licitation or by private sale. peremption may not be renounced. can read as follows: ANe Varietur” For identification with an Act of Mortgage. which merely prevents the enforcement of a right by an action.. . passed before me.
Parish Partition by licitation or by private sale. By paraphing the note ‘ne varietur. typically a COLLATERAL MORTGAGE NOTE. Also.” Latin for “it must not be altered.” The paraph itself.96 See LIBERATIVE
Partnership in commendam Peremption
. peremption destroys the right itself. Unlike LIBERATIVE PRESCRIPTION.89 A paraph is a signature by a notary on the evidence of an obligation. “Paraphing means that the notary signs the note with his official signature.’ the notary binds and identifies the note with the act of mortgage.93 A co-owner of a THING owned in INDIVISION with another may demand partition of the thing. to identify the note with the COLLATERAL MORTGAGE securing the note. when lots are of nearly equal value. and the proceeds are distributed to the co-owners. If the thing is not susceptible to partition in kind.94 A partnership in commendam is a equivalent to a limited partnership. thereby certifying to the note’s genuineness. appearing at the end of the collateral mortgage note. . e. 19__.92 The collateral mortgage will typically recite that collateral mortgage note “has been paraphed ‘Ne Varietur’ for identification with this act .” is traditionally used in the paraph. dated the ___ day of __.g. unlike prescription. equivalent to a right of first refusal. interrupted.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Pacte de preference Paraph. or suspended. Partition in kind
County.95 A period of time fixed by law for the existence of a right. . The court shall decree partition in kind when the thing is susceptible to such division. Ne varietur
Definition A right of preemption.
Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
PRESCRIPTION. See RESOLUTORY AND SUSPENSIVE CONDITIONS. Pawn is the pledge of a MOVABLE THING. Petitory action. AND PRIVATE THINGS. PUBLIC.99 See SERVITUDES. See BATEAU. See SERVITUDES. intervention. “Antichresis is probably limited to the pledge of land and other CORPOREAL IMMOVABLES. while antichresis is the pledge of an 97 IMMOVABLE.100 A concursus is equivalent to an interpleader. Pawn. The two kinds of pledge are pawn and antichresis. even those who have mortgages.) A pledge is a contract by which a debtor gives something to his creditor as a security for his debt. Reconventional demand. which the nature of a debt gives to a creditor. and which entitles him to be preferred before other creditors.”98 See PROCEDURE. but it’s not that backwards. See CONVENTIONAL OBLIGATION. Louisiana might be backwards.103
Peremptory exception Personal servitude Petitory action Pirogue Plaintiff and Defendant
Pledge. See COMMON. See LIBERATIVE PRESCRIPTION. These terms have exactly the opposite meaning in Louisiana as in common-law states. A right.
Definition See DECLINATORY EXCEPTION. Possessory
. and the demand against third parties. Incidental demand. cross-claims. Precarious possession is the exercise of possession over a THING with the permission of or on the behalf of the owner or possessor. See PROCEDURE. Homologation. Devolutive and Suspensive appeals. Antichresis
Possessory action Potestative condition Precarious possession
Predial servitude Prescription of nonuse Principal contract Private things Privilege
Procedure: Concursus.102 A reconventional demand is equivalent to a counterclaim. (This is just a joke.101 Incidental demands are reconvention.
for example the confirmation and homologation of a sheriff’s sale.106 The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed. “Real right” is sometimes erroneously associated solely with a right in immovable property. but who is not in possession.109 See OBLIGATION--REAL OBLIGATION. See COLLATERAL RELATIONS. The reconduction of a lease is a continuation of an expired lease on the same clauses and conditions that it previously contained.108 See MANDATARY. against another who is in possession or who claims the ownership thereof adversely.104 A homologation is a confirmation or approval by a court. confer direct and immediate authority over a THING. Examples include ownership.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept action
Definition A suspensive appeal is one that suspends the effect or execution of an appealable order or judgment. to obtain judgment recognizing the plaintiff’s ownership. as opposed to personal or obligatory rights.
Proces verbal Procuration Propinquity of consanguinity Public things Real obligation Real right
A transcript of a hearing. AND PRIVATE THINGS. or to be restored to the possession or enjoyment thereof when he has been evicted. Real rights. See OBLIGATION. of IMMOVABLE PROPERTY or of a REAL RIGHT therein. whether MOVABLE or IMMOVABLE PROPERTY. such as a probate hearing.107 See JACTITATORY ACTION. See COMMON. A devolutive appeal is one that does not suspend the effect of the judgment.105 A petitory action is one brought by a person who claims the ownership.110
Reconduction of a lease
. signed by a judge or clerk. and personal and predial SERVITUDES. PUBLIC.
115 See TRANSACTION. Redhibitory defect or vice
Definition See PROCEDURE. If the obligation may be immediately enforced but will come to an end when the uncertain event occurs. that is must be supposed that the buyer would not have purchased it. See CONVENTIONAL OBLIGATION--ALEATORY CONTRACT. who is unable to satisfy his debts at the moment. A demand or action for the restoration of money or a thing that was paid but that was not due.
Revocatory action. Oblique action
. Redhibitory action. which renders it either absolutely useless. If an obligor causes or increases his insolvency by failing to exercise a right. the obligee may by the oblique action exercise the right himself.113 A suspensive condition that depends solely upon the whim of the obligor is a whimsical condition. The revocatory action is the right of an obligee to annul an act of the obligor that causes or increases the obligor’s insolvency. Redhibition is the avoidance of a sale on account of some vice or defect in the THING sold.114
Relative simulation Repetition
Resolutory and Suspensive conditions. or its use so inconvenient and imperfect. similar in some respects to a condition subsequent.” no longer in the Civil Code. A condition is suspensive if the CONDITIONAL OBLIGATION may not be enforced until the uncertain event occurs. unless the right is STRICTLY 116 See OBLIGATIONS--STRICTLY PERSONAL to the obligor.112 See OBLIGATION-NATURAL OBLIGATION. and is similar in some ways to a condition precedent. This sort of conditional obligation is null. meant a condition that makes an obligation depend on an event in the power of one of the parties to bring about or hinder. Redhibition is sought in an action for redhibition or redhibitory action. Potestative condition
A respite is an act by which a debtor. transacts with his creditors and obtains from them time or delay for the payment of the sums that he owes them. the condition is resolutory.111 See SIMULATION. The expression “potestative condition. had he known of the redhibitory vice or defect.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Reconventional demand Redhibition. Whimsical condition.
Definition See SERVITUDES. In Louisiana. or measured. counted. the goods.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept
PERSONAL OBLIGATION. if a higher price may be obtained.119 There may also be sales by weight. on the contrary. Personal servitudes. such as a fisher selling a haul of his net before throwing it. several items of a debtor’s property that have been seized may be sold as a whole. count or measure. and
. or other objects have been sold in a lump. or measured yet.121 When property is seized and sold to satisfy a judgment. Sale by weight. produce.123
Rights of use Sale
Sale of litigious rights. There are three types: USUFRUCT. by tale. as of animals yet unborn. Legal servitudes. count. habitation.124 A personal servitude is a charge on a THING for the benefit of a person. or measure. for a lump price. counted. Predial servitudes. There are two kinds of servitudes: personal servitudes and predial servitudes.118 A sale of a future thing is the sale of a thing to come.”117 See LITIGIOUS RIGHT. but by weight.120 If. where goods. “Land is not ‘conveyed’ by deed but is sold. Doctrine of Sales: Sale of a hope.122 A sale per aversionem is the sale of an immovable where it is designated by the adjoining tenements and sold from boundary to boundary. or in globo. the sale is perfected even though the objects have not been weighed. A sale of a hope is the sale of an uncertain hope. Sale of future thing. Rights of use
See TESTAMENTS. Sales of MOVABLES and IMMOVABLES are based on the same principles. One sells land by the same contract and in the same way--in terms of theory--as one sells an automobile. or by measure. In this case the sale is not perfected such that the risk of loss passes from the seller to the buyer until the things sold are weighed. Habitation. produce. or other objects are not sold in a lump. Sale per aversionem
Sealed testament Servitude by destination Servitudes. Lump sale. See SERVITUDES.
or fishing or hunting rights and the taking of certain FRUITS of products from an estate. such as the prohibition of building on an estate or of building above a particular height.
Habitation is the nontransferable REAL RIGHT of a NATURAL 126 PERSON to dwell in the house of another. unless there is express provision to the contrary.128 A predial servitude is a charge on a servient estate for the benefit of a dominant estate. an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry a formal declaration establishing the destination.
.130 A predial servitude is either apparent or nonapparent. Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept rights of use.g. e.131 A predial servitude may also be acquired by destination. Similar to an appurtenant easement. the obligation to keep one’s building in repair so that it does not fall and cause damage to a neighbor or to a passerby. Apparent servitudes are those that are perceivable by exterior signs. privilege. A right of use confers in favor of a person a specified use of an estate less than full enjoyment. such as a right of passage or of light and view.127 Legal servitudes are limitations on ownership established by law for the benefit of the general public or particular persons. or easements in gross and profits in gross. A nonapparent servitude has no exterior sign of its existence. Similar to the common law’s right of way. works. or constructions.129 A conventional or voluntary servitude is a predial servitude which is established by an owner on his estate or acquired for its benefit. When the two estates cease to belong to the same owner. such as a roadway or a window in a common wall.
A contract is a simulation when. Relative simulation. that writing is a counter-letter. A simulation is absolute when the parties intend the contract to produce no effects between them. called a third party beneficiary.136 See LIBERATIVE PRESCRIPTION. Subjective novation occurs when a new obligor is substituted for a prior obligor who is discharged by the obligee. See CONVENTIONAL OBLIGATION. SOLIDARY LIABILITY. or a new CAUSE is substituted for that of the original OBLIGATION.134 See OBLIGATION.135 See FIDEI COMMISSA. A simulation is relative when the parties intend that their contract shall produce effects between them. Testaments or wills in Louisiana may be nuncupative or
Substitutions Suppletive law
Suspension and Interruption of prescription Suspensive condition Suspensive appeal Synallagmatic contract Testaments: Nuncupative or
. it does not express the true intent of the parties. See OBLIGATION. Liability in solido Solidary obligation Stipulation pour autri Strictly personal obligation Subjective and Objective novation
Solidary liability or liability in solido is similar to the common-law’s joint and several liability. If the true intent of the parties is expressed in a separate writing. a contract does not provide for a certain situation.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Several obligation Simulation. though different from those recited in their contract. Objective novation takes place when a new performance is substituted for that previously owed. by mutual agreement. AND SOLIDARY OBLIGATIONS. See RESOLUTORY AND SUSPENSIVE CONDITIONS.132
Solidary liability. JOINT. A stipulation in a contract of a benefit for a third person. Suppletive law is general background law that fills in gaps where. Counter-letter See OBLIGATION.133 See OBLIGATION--SEVERAL. See PROCEDURE. for example.
Naked ownership.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Open.143 An undertutor is also appointed in every tutorship. Usufruct is a REAL RIGHT of limited duration on the property of another. Legal usufruct. is similar to a life tenant. Things are divided into COMMON. similar to the common-law’s holographic will.149 The ownership of a THING burdened with a usufruct is the naked ownership.142 although.148 A legal usufruct is one established by law in favor of a surviving spouse over the deceased spouse’s share of the COMMUNITY PROPERTY that may be inherited by their descendants. Equivalent to settlement of a lawsuit. Undertutor
Undertutor Unworthiness of heirs
Usufruct. Heirs are called unworthy who. and Olographic testaments
Definition open. by the failure in some duty towards a person.146 Usufruct is one of the three sorts of PERSONAL SERVITUDES. a transaction or compromise is an agreement between persons who. PUBLIC.137 Nuncupative testaments are oral wills declared or dictated by the testator in his last sickness.138 The mystic (or secret or closed or sealed) testament is one which is put into a sealed envelope.141 See RESPITE. An olographic testament. mystic or sealed. Tutor. Usufructuary
. and PRIVATE.147 The owner of the usufruct.145 See DISINHERISON. A tutor is a person similar to a guardian of a child. adjust their differences by mutual consent. It is similar to the common law’s life estate. A female tutor is sometimes called a tutrix. CORPOREALS and INCORPOREALS. and MOVABLES and 140 IMMOVABLES. or usufructuary. A dative tutorship is one appointed by a judge. have not deserved to inherit from him. or olographic.144 See TUTORSHIP. and are therefore deprived of his succession.139 See BOUDREAUX AND THIBODEAUX. although the usufruct need not last for life. for preventing or putting an end to a lawsuit. is one in the testator’s handwriting. in today’s climate. Mystic or Sealed. which is owned by the naked owner. this may be more and more dangerous to do. Dative tutorship. Naked ownership is similar to a reversion or estate in
Transaction or Compromise
151 As another example. where each partner is liable for the whole debt of the partnership). See RESOLUTORY AND SUSPENSIVE CONDITIONS. his partnership share--of the debts of the partnership (unlike other states.152 See OBLIGATIONS--SOLIDARY OBLIGATIONS.
Vulgar Substitutions Whimsical condition
. See FIDEI COMMISSA. a partner is bound only for his virile share--i.150 A virile portion is the portion of an obligation for which each solidary obligor is liable.e.Civil Law to Common Law Dictionary · Kinsella
Civil Law Concept Virile share or portion
Definition reversion. the residue of a life estate..
and Private things Resolutory and Suspensive conditions Cause Civil possession Conventional obligation Sale Procedure--Reconventional demand Parish Fidei commissa De cujus Disinherison Servitudes--Right of use
. Agency Appurtenant easement Arbitrator Bilateral or Reciprocal Contract Boat Canoe Chose in action Civil law Commitment Commons. Public. Condition subsequent Consideration Constructive possession Contract Conveyance Counterclaim County ADead hand” or mortmain control Decedent Disinheritance Easements in gross Place Discussed in Civil Law Table Giving in Payment.Civil Law to Common Law Dictionary · Kinsella
Cross-Correlation Table Common Law Term Accord and satisfaction Acre Agent. Common property. or Dation en paiement Arpent Mandatary--Mandate Servitudes--Predial servitude Amicable compounder Conventional obligation--Synallagmatic contract Bateau Bateau--Pirogue Corporeals--Incorporeals Civil law Interdiction Common. Communia Condition precedent.
Merger of rights or Extinguishment Mineral estate Moral consideration Mortmain or “dead hand” control Personal property. and Private things Servitudes--Right of use Servitudes--Right of use Duty-risk analysis
Estate in reversion Extinguishment Fixtures Guardian Holographic will Intangibles Interest Interpleader Joint and several Joint tenants Life estate.Civil Law to Common Law Dictionary · Kinsella
Common Law Term Entire or several contracts
Place Discussed in Civil Law Table Obligations--Conjunctive and Alternative obligations. Usufruct--Usufructuary Partnership in commendam Commodatum--Mutuum Commodatum Confusion Minerals--Mineral Servitude Obligations--Natural obligation Fidei commissa Immovables--Movables Common. Public. Divisible and Indivisible obligations Usufruct--Naked ownership Confusion Component parts Tutorship--Tutor Testaments--Olographic testament Corporeals--Incorporeals Fruits--Civil fruits Procedure--Concursus Solidary liability Indivision--Ownership in indivision Usufruct. Life tenant Limited partnership Loan for consumption Loan for use Merger of title. personalty Private property Privilege Profits in gross Proximate cause and Duty negligence
and Private things Immovables Conventional obligation--Synallagmatic contract Coonass Fruits--Civil fruits Usufruct--Naked ownership Usufruct--Naked ownership Pacte de preference Servitudes--Right of use Fidei commissa Compensation Transaction or Compromise Jactitatory action Jurisprudence constante Liberative Prescription Minerals--Mineral Servitude Corporeals Indivision--Ownership in indivision Stipulation pour autri Liberative prescription--Interruption and Suspension of prescription Delicts Testaments
.Civil Law to Common Law Dictionary · Kinsella
Common Law Term analysis Public domain. Realty Reciprocal contract Redneck Rentals Residue of a life estate Reversion (of a life estate) Right of first refusal Right of way Rule against perpetuities Set-off Settlement of a lawsuit Slander of title Stare decisis Statute of Limitations Surface estate Tangibles and Intangibles Tenants in common Third party beneficiary Tolling the statute of limitations Torts Will
Place Discussed in Civil Law Table Common. Public lands Real property. Public.
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Civil Law to Common Law Dictionary · Kinsella
Black’s 132 (authentic act).S. TIB-ih-doe. 5. and habitation. Cir. 8. The impact of pirogues on Louisiana law should not be doubted: in Johnson v. . Black’s 82 (amicable compounder). 2. These articles are sometimes reproduced verbatim without accompanying quotation marks. L. 310. clothing . . Pronounced PEE-roe. 1295. 1980) (frog hunting on a lake from an aluminum bateau). 695. REV.D. 843. and ARS-en-oe. . CC 229. . means of support. in order to make it to a friend’s wedding.”). Hotard v. State Farm Fire and Casualty Company. 962. and Arceneaux are pronounced BOO-droe.. See also A. N. For an excellent discussion of the civil code and its history in Louisiana. Martin and J. 1990) (defining “accretion”) (hereinafter cited as “Black’s [page] ([term(s) defined])”). and the Louisiana Mineral Code. 965 (1975). REV. My wife. Armstrong. the Louisiana Code of Civil Procedure (West 1993).2d 812 (La. J. Articles from the Louisiana Civil Code (West 1993). 1st Cir. 1250 (La.49.Civil Law to Common Law Dictionary · Kinsella
1. Boudreaux. CC 3110. ed. The Civil Codes of Louisiana. See also Cueto-Rua.App. THE LOUISIANA CIVIL CODE: A EUROPEAN LEGACY FOR THE UNITED STATES (1993). CODE ANN. 35 LA. REV. see SHAEL HERMAN. Gwin.2d 779. I could find no caselaw or academic article discussing Boudreaux and Thibodeaux. 7. See CODE NAPOLEON (N. For a useful summary of the history of the legal systems of both Louisiana and Texas (as a representative common-law state). West 1993). 240 La. 15 (1986) (small caps added). arpennus). Stephan Kinsella ed. Title 31 (West 1989 & Supp. BLACK’S LAW DICTIONARY 20 (6th ed. aliments.2d 1250. and “MC ___”. she had to take a bateau to get from her front door to the road in front of her house.2d 752 (1948). 35 So. entitled “No receiver of immovable property appointed without notice. art. L. 11. Through Louisiana Health and Human Resources Administration. 176 La.” 12. 47 (1933). CIV. 47 LA. LSACR. City of New Orleans. ' 3(f) (Vernon Supp. 4.. 769. see Patrick H. published by the Louisiana Bar Foundation. 52 LA. ed. “CCP ___”. TEX. 1994) provides: “‘Insurable property’ means immovable property at fixed locations in a catastrophe area or corporeal movable property located therein . R. L. 319 So.App. Jung v. . Yiannopoulos. 769-82 (1992) (hereinafter “Martin & Yeates”). Claitor’s Publishing Division 2d. . used to live near Bayou Manchac in Ascension PARISH. Darden v. 213 La. during a flood. respectively. She tells me that one time. State. 6. REV. LOUISIANA CIVIL CODE 1993 EDITION XXV (Yiannopoulos. 3d. CC 1022-31.” See also TEX. Dunham. including food . CC 1833. 381 So. INS. Lanier Yeates. & John C. 1994Cforthcoming) (1960). Jr. Tammany PARISH). 1. See also Plescia v. 64 TUL. 1297 (1990). Cindy DeLaneyKinsella.App. Nails: The Louisiana Abuse of Rights Doctrine. 147 So. Pronounced BAT-toe. 1974).. 303 So. 123 So. 1975) (pirogue races on Bayou Liberty in St.” 3. v. arpent. P. things necessary to sustain life. 1st Cir. 785 (La. 1993) are cited herein as “CC ___”. Thibodeaux. Black’s 109 (arpen. Morgan. Cox. . Abuse of Rights. .2d 68 (1960). LaMaster. Black’s 73 (alimenta: “In the civil law. 21. 9. the closest authority I could find is the case
. Retaliatory Eviction as Abuse of Rights: A Civilian Approach to Landlord-Tenant Disputes. Rushing v. 10. L. Louisiana and Texas Oil & Gas Law: An Overview of the Differences. the court stated that the “mere fact that the water was deep enough to float a pirogue or a flat-bottomed fishing boat does not prove navigability. Recent DevelopmentsCMassachusetts Mutual Life Insurance Co. George M.
and sank to the bottom of the bayou. and rights). 2338. 23. admittedly. is not really any authority at all. 20. CC 449-53. Chapter 2. 3d. I did confirm the Boudreaux-Thibodeaux joke usage with my friend Jamie Malcombe. Revision CommentsC1984 to CC 1967. which. Black’s 638 (fixture). BRYAN A. A DICTIONARY OF MODERN LEGAL USAGE (2d ed. CC 2327. CC 936. REV. 989 (mergerCproperty interests. 445 So. 2339. 25. 263 (collect).”). Garner. 60 TUL. in 2 LOUISIANA CIVIL LAW TREATISE (3rd ed. 15. DMLU (community property). 303 (consanguinity). 28. 400 (1921). Nathan. N. 463. Black’s 246 (Acivil law”). 1229. Detrimental Reliance and Promissory Estoppel as the Cause of Contracts in Louisiana and Comparative Law. for example. comment (c). 17. 24. Blanchard v. A. 262 (collation). CC 900. PROPERTY ' 125. L. Black’s 300 (confusio. Boudreaux groaned and shouted down into the water. Black’s 261 (collateral. Common Disasters and Common Sense in Louisiana. 251 (1841). Prevost.Civil Law to Common Law Dictionary · Kinsella
Boudreaux v. 89 So. 493. 41 TUL. 1209 (1986). Black’s 278 (commons). and saw Thibodeaux on the bottom of the bayou. 19 La. “Thibodeaux. CC 2891. “The Legal Regime of Community of Acquets and Gains”. L. La. 14. you stupid COONASS.R. CC 1227. 29. When Thibodeaux had not surfaced for a while. 279 (communia). 149 La. 1218 (propinquity). collateral kinsmen). Garner. Black’s 314 (constructive possession).Cforthcoming) (defining “caducity”) (hereinafter “Garner. 21. 262 (collateral heir. Black’s 52 (advancement).S. 40 n. YIANNOPOULOS. For a discussion of the differences between cause and consideration. private property. CC 1966-67. DMLU”). PULL THE CHOKE!!” 13. CC 1705. public property). repeatedly pulling the crank rope on the motor in an attempt to start it. 1229 (public domain. CC 901. 27.2d 149 (La. 1216-17 (propertyCclassificationCcommon property. 250. loan for use). due to caducity of a legacy or simple omission.
. Title VI. 2893. CC Book III. CC 765 and 1903. REV. CC 3431. 16. Black’s 937 (loan for consumption. CC 468. Black’s 280 (community property). 10:9-313. 1991). 22. and without warning the motor fell off. Thibodeaux. 33. GARNER. a true Cajun lawyer from Lafayette. Ellis v. 26. comment (c). comment (b) (AThe heirs succeed even when there is a valid testament to any portion of the property not disposed of by the testament. Tinsman. 1984). DMLU (commorientes). Revision CommentsC1984 to CC 1970. 19 (1966).1. confusion). The joke in full is: Boudreaux and Thibodeaux were fishing one day on the bayou in Boudreaux’s BATEAU. 2910. CC 1893. PULL THE CHOKE. Thibodeaux immediately dove in the water after the motor. Cir. 18. CC 462. Revision CommentsC1991 to CC 880. and 1372 (set-off). Black’s 283 (compensatio). 19.App. public lands). see Christian Larroumet. Boudreaux peered down into the water. collateral consanguinity).
Unfortunately. . CC 536 and 537. This ignorant acceptance was done with the unfortunate belief by some that the term is ‘cute’ or ‘humorous. 38. L. above). comment. and Political Correctness: Free Speech and Race Relations on Campus. Revision CommentsC1984 to CC 1911. Confederate Flags. the Louisiana legislature “condemned” (whatever that means) the use of the term “Coonass. 1906. 1986) (fight started at cockfights when one party thought he was being called a redneck). Mabry. However. As for zydeco music.” who must like being called “Coonass. Edwards at one time proudly proclaimed that he was a ‘coonass. . 1151. 31. 1088 (onerous). the term began to be used to refer to the Acadians in South Louisiana. in 1981. CC 1756-57. Rev.’” Id. Black’s 70 (aleatory contract.” Id. Black’s 322-24 (contractCprincipal and accessory). Id. he says he knows plenty of them. 608 So. At 1168-69 (citations omitted).e.” Non-French-speaking American soldiers “began to harass the Louisiana soldier by calling him ‘coonass’ as a takeoff of the word ‘conasse’ used by the French forces. aleatory promise). Black’s 281 (commutative contract). 34. “Uh. comment (b). James Harvey Domengeaux. and it conflicts with my own experienceCmost Cajuns I know like the term. 322 (contractCcommutative and independent). [Louisiana Governor] Edwin W. CC 1914. named “William ‘Coonass’ Hendricks. 40.
33. 3d. there is a character mentioned.” which meant a stupid person or similar derogatory concept. Revision CommentsC1984 to CC 1909. 46 La.. 1418 (1992) (discussing the negative stereotypical image
. at 1169. might be. as persuasive precedent for the proposition that crawfish boils exist. While Blaine says he’s not really sure if he’s a coonass or not. CC 1909. Ronald J. “Unfortunately. Black’s 322-25 (contractCunilateral and bilateral). 35.’” Domengeaux feels that “This insulting word was never a proud or complimentary term affixed to the Acadian people. .2d 627 (La. a native of Lafayette. 37. we have no evidence that he is a coonass. CC 1909. Black’s 331 (conventionCRoman law). 489 So. A typical usage of the term by a Cajun. Native-Born Acadians and the Equality Ideal.” Id. 100 (1986). CC 1911. 1411. he does not cite any evidence of this. a lawyer from Lake Charles. to refer to himself. Silguero. Cir. 32. 39. comment (c).” After World War II. 66 TUL.App.Civil Law to Common Law Dictionary · Kinsella
30. 36. 1168. at 1169. CC 1912. “Ah don’t know if Pierre’s goin’ to da crawfish ball [i. a small contingent of the Acadian population welcomed and promoted [the use of the term after World War II].2d 1076 (La. As stated by Mike Myers (of Wayne’s World fame) on a recent episode of The Tonight Show with Jay Leno. I think that goes in the ‘Lighten Up’ file. at 1168-69. I note that Justice Sandra Day O’Connor attended a crawfish boil at the LSU Law Center a few years ago. 41. Black’s 322-23 (contractCgratuitous and onerous). Further. explains that “coonass” is derived from the French noun “conasse. boil]. a good sampling can be found on the soundtrack to the film Passion Fish. CC Title IV (AConventional Obligations or Contracts”). Louisiana. CC 1913. but dis coonass gonna go. French soldiers referred to French-speaking American soldiers during World War II as “conasse. Lalonde v. My friend Jamie Malcombe (see note 12. admittedly. And in State v. the Cajun heartland. Rychlak.” although. L. 1992). agrees with this.” This example was kindly supplied to me by my friend Blaine Doucet. Civil Rights. n. REV.” Domengeaux goes on to state that “a majority of the Acadian people despise the slur’s use.
Black’s 624 (fide-commissary. 59. in 12 LOUISIANA CIVIL LAW TREATISE (1977 & Supp. Ottinger. Fideicommissa and Trusts in Louisiana Law: A Semantical Reappraisal. at 48-49. Swart v. 161 (1942). emphyteuta). Black’s 412 (de cujus). Jr. ‘tort is a civil wrong for which reparation is sought. CCP 2631. CC 1617. CC 1521. supra note 1. 106 So. 53. 14 L. Patrick S.. Galligan. L. hypothecaria actio. at 50. L. Black’s 524 (emphyteusis. CCP 3722. fidei-commissum). Co. disinheritance). 530 So. hypothecate. Black’s 669 (fruits). CC 2655.). 767 (incorporeal rights. 42. CC 2316. Civ. 1993). Black’s 742-43 (hypotheca. CC 1520. CC 483. CCP 923 and 926. 51 LA. Black’s 241 (chose in action). Crawford. STONE. 529 So. incorporeal things). 1525 (1993).2d 374. at p. 53 LA.” Herman. 288. CCP 923 and 925. Louisiana & A. 3 (West Supp. and 1456 (tangible property). 313. Matter of Hill. 24 LA. CC 461. 767 (incorporeal property). meaning conduct twisted from the norm. and from the Latin tortus. REV. CC 2315.S.2d 56. CCP 3741. 48. 2d. 403. Tucker. v. Lane. ed. Charles Wallfisch. 51. 17 TUL. Title XXII. 44. Vulgar Substitutions: The 1984 Amendment to Article 1521. 1515. 833 (1926). 981 F. REV. Stone. 50. 45. Black’s 468 (disinherison. REV. L. 87. West. 475 So. hypothecary action.
46. Book III. 43. 55.2d 1151 (La. 1988). CC 1433. 1430 (substitution). Ry. L.A. 1993. M. at notes 9-14 and accompanying text (1987). 49. 381 (La. 54. “According to Professor Ferdinand F. Code. normally in the form of an award of money damages. hypothecarii creditores. Black’s 427 (delict). hypothèque). Thomas C. TORT DOCTRINE ' 289. 1456 (tangible). Stone. Butler v. 159. 59 (La. supra note 1. 91 (1990). CC 2779-92. Substitutions. A Primer on Patterns of Negligence.Civil Law to Common Law Dictionary · Kinsella
of Mississippi rednecks). FERDINAND F. 160 La. Cir. 424 (1911). 56. Black’s 395 (dation en paiement).. West v.App. See also Pitre v. fideicommissarius. Tort Doctrine in Louisiana: The Materials for the Decision of a Case. REV. Formerly. 439 (1964).. Sherman. Enforcement of Real Mortgages by Executory Process. 57. 131 La. CCP 923 and 927. 217. 58. REV. 551. Opelousas General Hosp.2d 1474 (5th Cir. 47. 61 TUL. citing Ferdinand F. Winn Parish Lumber Co. “Exposé des Motifs”. 1993) (discussing the meaning of “hypothecate” and
. L. 1616. William E. 809 (intangible property. CC 1520-21. 1988). The word comes from the French word tort or wrong. 343 (corporeal property). the French used the term ‘tort’ but now they have discarded it in favor of the word délit. derived from the Latin term delictum. 59 So. 1985). Baber. 1509. 52. intangibles).
La.” although they are spelled as listed in the text above by the Louisiana Civil Code. However. CCP 3659. St. see also ROGER A. despite this theoretical difference between civilian and common law ownership. MOYNIHAN. 236 So. is tacitly subjected to the obligation of yielding it to the community. Black’s 751 (immovables). and exclusive authority over a thing. Brown v. CC 480. Tenure. 61. INTRODUCTION TO THE LAW OF REAL PROPERTY. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist. In Louisiana. CUNNINGHAM. Cir. Black’s 335 (co-owner) and 1465 (tenancyCtenancy in common. however. The owner of a thing may use.. Wood. at 25 (footnote omitted). enjoy.” CC 477. et al. 64. it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i. with the king as the ultimate lord and owner of the land. “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple. Lands in the thirteen original American colonies were held in tenure. 2d. wherever it becomes necessary for the general use. in reality. interdiction). joint tenancy). any particular property.” Cunningham. “In the remaining states it would seem that lands are still held in tenure of the state as overlord. However. et al. WILLIAM B. CORNELIUS J. Article 2627 further provides: If the owner of a thing necessary for the general use. e. while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial. 3d. Cir. concerning the right of the sovereign (king or state) to ultimate ownership of land. et al.App. 1970). Chapter 1 (West 1984).” Cunningham. in all fifty states. at least in some states such as Pennsylvania and South Carolina. For land is subject to expropriation by way of eminent domain. “Throughout the rest of the United States. CC 389 et seq. exists after all. 60. and dispose of it within the limits and under the conditions established by law.. CC 462 and 471. every individual who possesses under the protection of the laws. “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. 811 (interdict. Black’s 834 (jactitation).’ or otherwise declaring that tenure was abolished. General American Oil Company of Texas v. refuses to yield it. Meche.. It is interesting to note one (only apparent. at 23. To say that land is owned “allodially” is a fiction. It must be pointed out that. THE LAW OF PROPERTY. he may be divested of the property by the authority of law.Civil Law to Common Law Dictionary · Kinsella
related terms. 1988). 22 (2d ed. it seems clear that tenure never existed. 63. Civil Code art. See. AND DALE A. in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. Black’s 273 (commitment). 218 (La. immediate. 7-8. 451 So. 442 So.g. “Ownership is the right that confers on a person direct. 62. 381 (curator). and the theoretical difference pointed to above is not really a difference at all. Johnson v.” Cunningham. at 25 (footnotes omitted).2d 569 (La. or demands an exorbitant price. one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land. at 23. These terms are sometimes spelled “immoveables” and “moveables.e.. property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Furthermore. STOEBUCK. Moynihan. For all practical purposes. 1014 (movables)..2d 216. then. 2626: The first law of society being that the general interest shall be preferred to that of individuals. Paul Mercury Insurance Company..App.
. 1984). 1983). WHITMAN. at 25 (footnotes omitted). tenure would appear to have little or no practical significance.” Moynihan. and current Louisiana usage). as will be seen below) theoretical difference between the civilian and common law conception of real property ownership.2d 496 (La.
1766. 2589. but which instead impoverishes all rights-holders. 1125. n. 72. at 1185. Martin & Yeates. Black’s 968 (marital portion). REV. 2801. 81.Civil Law to Common Law Dictionary · Kinsella
65. 79. 962 (mandatary. CC 1765. CC 2985. 75. Black’s 1036 (negotiorum gestior. Precedent in English and Continental Law. 3472.App. Moral Damages. 3466. 74. and 27. Black’s 902 (lesion). This article (CC 2652) is thus a good example of legislation which is intended to benefit certain individuals. at 802 and 803. CC 1965. 476. 1183 (prescription). Preventing the sale of litigious rights diminishes the value of having a litigious right. 71. Black’s 901 (legitimacy. 2664.
. 77. of course. 68. Black’s 62 (agency). J. 83. 1495. legitimation). DMLU (prescribe). Black’s 600 (falcidian portion). L. 804. Garner. 2653.2d 1123 (La. J. Shael Herman. 69. is legislated out of existence. DMLU (legitim(e)).. MC 6. 1074 (obligationCnatural or civil obligation). makes rights themselves worth less to the rights-holder. L. dissenting).. CC 3462. 1183 (prescription). 16. This. Davis. 42 (1934). Revision CommentsC1978 to CC 476. CCP 3445-48. Ford Motor Company. Black’s 1263 (real). 1488 (toll). 80. 82. Black’s 927 (limitationCstatute of limitations). 1134 n. and 805. Inc. 41 LA. 1980). CC 1763. 1 (1977). Martin & Yeates. 73. 56 TUL. 50 L. 21. 34. which might otherwise aid in the efficient enforcement of rights.. comment (a). Saúl Litvinoff. legitimate. Llewellyn the Civilian: Speculations on the Contribution of Continental Experience to the Uniform Commercial Code. quoting Goodhard. CC 2295. CC 2432. Black’s 934 (litigious right). The Early Sources of Forced Heirship: Its History in Texas and Louisiana. 76. 67. 63 (agent). Joseph Dainow. REV. 1992). 40. 1183 (prescription). REV. Garner. 3506(18). Black’s 306 (considerationCequitable or moral considerations). 1616 (falcidian portion abolished). CC 24.2d 1001 (La.Q. 42 (1941). 3465. Young v. CC 3469. 1494. 624 So. CC 1234. Black’s 927 (limitationCstatute of limitations). since a less-enforceable and less-tradeable right is not as valuable as a more enforceable and fungible one. since a secondary discount market. CC 1760-62. 78. 900 (legitime). Revision CommentsC1984 to CC 1998. Black’s 1075 (obligationCpersonal or heritable obligation). Cir. CC 2652 (sale of litigious rights). CC 178-80. mandate).2d 1156 (1993) (holding unconstitutional a recent legislative attempt to limit forced heirship). 3d. at 1185-86 (Kimball. REV. 38 LA. MC 15. CC 181. dissenting) (discussing the early history of forced heirship and discussing the falcidian portion). 595 So. 66. 803. 198-201. cited in Lauga. Clark v. and Lauga. negotiorum gestor). Black’s 927 (limitationCstatute of limitations). Succession of Lauga. 386 So. L.2 (Kimball. CC 1998.
70. comment (b).
89. 2d.2d 1065. and 811. 97.A. Black’s 292 (concursus). 9:5180-5180. 86. 7. DMLU (preempt. JR. CC 2837. 103. Garner. Title XXII. The Collateral Mortgage. L. II A BASIC LOUISIANA NOTARIAL GUIDE ' 27.2d 824 (La. 2324. 1993). 93. Thomas A. 14 (1990) (small caps added).W.App. Hogan. 50 LA. JAMES D. 817 (interpleader). Cir. Williams. and 12 (West Supp.A. Black’s 322-23 (contractCdivisible and indivisible. CC 1815-16. Jr. 33 LA.S.S.2d 592.2d 977 (La. REV.App. MHC Properties. Inc. CCP 2701. peremption). Harrell. perempt). CCP 2636(1). Black’s 92 (antichresis). L.Civil Law to Common Law Dictionary · Kinsella
84. 105. CCP 1061. Black’s 1109 (pactum de non alienando). 1984).S. 95. 1069 (La. 101.
.. Black’s 837 (joint and several contracts. 423 So. 736 (homologation). Goodnight. v.. homologate). Black’s 1074 (obligationCconjunctive or alternative obligation). 1393 (solidarity. Civ. 96. CC 3133-35. CC 3186. 497. DMLU (preempt. 90. Pioneer Enterprises. Three. Book III. Cir. 87. 9:5555(A). solidary). 98.4. Black’s 349 (counterclaim). 595 (La. joint and several liability). CCP 2123. 1993). Gayle Marshall. CC 3437. 92. entire and severable). Code. Black’s 922 (licitation) and 1119 (partition). Black’s 735 (homologación. solidary obligation). Black’s 1112 (paraph). CC 1807. Inc. 1074 (obligationCdivisible or indivisible obligation). perempt) (preemption. L. L. 723 n. 99. 810. Cir. R. 85. 2d. 711.A. citing Max Nathan. CC 1786-90. 94. Harrelson v. CCP 4651. 1115 (parish).2. 1990).S. at pp. JOHNSON. CCP 3337. Black’s 1136 (peremptorius). CCP 1031. 14 L. v.S. 624 So. CC 3458. 500 (1973).App. R. “Exposé des Motifs”. 1808.A.. Garner. Inc. p. 88. Black’s 1197 (PrivilegeCCivil law).
91. 2087. 102. 5. L. 1982). REV. and H. CC 3325. Black’s 350 (county). CC 807. Keene v. peremption). (preemption. 451 So. 88 (1986). 3d. A Guide to the Provisions of Chapter Nine of Louisiana’s Commercial Code. 561 So.9. 100. 104. 1074-75 (obligationCjoint or several obligations.
CC 2301-12. 119. CC 639. Garner. 1164 (possessory action). CCP 2890. CC 2688. 2044. at 440. 108. DMLU (redhibition). supra note 60. CC 2495. 129. Revision CommentsC1978 to CC 476.
116. Black’s 1206 (procès-verbal). redhibitory action. Martin & Yeates. CC 2451. 1197 (privilege). 123. Black’s 1370 (servitude). at 440. Black’s 1299 (repetition). Black’s 1279 (redhibition. CC 2450. 114. 120. CC 2520. Black’s 1370 (servitude). 122. 1164 (possessory action). Black’s 1146 (petitory action). 1211 (profitCprofit à prendre). at 787-88 (bold and small capitals added). Black’s 1263 (real). CC 659 and 660. 121. CC 2036. Black’s 1146 (petitory action). French law). CC 2458. 110. supra note 60. 125. Black’s 509 (easementCappurtenant easement) and 1211
. 113. Cunningham et al. redhibitory defect or vice). 1272 (reconduction). CC 1770 and Revision CommentsC1984. CCP 2295. 124. Black’s 1311 (respite). CC 534. CCP 3651. CC 533. CC 1767. CC 646.. Revision CommentsC1976 to CC 640. 115. CC 630. Cunningham et al. CC 476.Civil Law to Common Law Dictionary · Kinsella
106. 117. Black’s 510 (easementCeasement in gross). 109. Black’s 293 (conditionCcivil law). Black’s 711 (habitation). comment (a). and 1326 (right of way). 107. comment (b). Black’s 333 (conveyance) and 1337 (sale). 127. 111. CC 2459. See also CC 2439 and 448.. CC 3084. CCP 3655. 126. Black’s 293-94 (conditionCcivil law. 128. 118. 1566 (vice). 112.
151. 133. 1384 (simulation). Black’s 1480 (third party beneficiary). CC 2817. 1474 (testamentCmystic testament). Black’s 295 (dative). CC 2025-27. life interest). Garner. joint and several liability). 256.
140. and 1546 (usus fructus). 137. Black’s 837 (joint and several contracts. 142. Garner. Black’s 349 (counter letter). CC 2324. 131. CC 1804. CC 1978. 132. CC 964-66. See also Garner. See Black’s 924 (life tenant). 145. 143. 134. CC 3071.” at p. CC 1574-89. ' III. Garner. 782. 136. Black’s 1518 (tutor).
. CC 1881-82. Black’s 924 (life estate. Black’s 1069 (nuncupative will). 150. 130. 139. CC 448. DMLU (virile). CC 270. 149. 152. Black’s 732 (holograph). Black’s 1064 (novation). 1544 (usufruct). DMLU (pr(a)edial). See also Martin & Yeates. See new CC 2602 (effective January 1. CC 707. 1086 (olograph). Black’s 287 (compromise and settlement) and 1372 (settlement).Civil Law to Common Law Dictionary · Kinsella
(profitCprofit à prendre). 1393 (solidarity. CC 1578 et seq. DMLU (joint and several). CC 697 et seq. DMLU (holograph). Garner. 138. CC 478. Black’s 1527 (under-tutor). 147. 148. 141. CC 1574. DMLU (testament). Black’s 1320 (reversion). 144. “Fundamental Property Concepts and Their Consequences. solidary).. CC 246. CC 535. CC 534. Black’s 1370 (servitude). 1995) for an example of a reference to the suppletive law. CC 890. 146. 135. CC 273.