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124 Cards in this Set
- Front
- Back
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Two Primary Sources of Law in Louisiana |
Legislation
Custom |
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Primary authority superior to all other sources of law in Louisiana is...
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Legislation
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Custom comes from...
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1. Repeated practice for a long period |
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What type of obligation is a juridical act?
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Declarations of Will
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What type of obligation is a juridical fact?
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The law
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3 Types of Quasi Contracts
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Management of the affairs of another
Enrichment without cause Payment of a thing not owed |
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5 Situations in which a Natural Obligation Might Arise
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Civil or legal obligation has prescribed
Civil or legal obligation has been discharged in bankruptcy Individual with discernment lacks legal capacity Lack of form in testament Others |
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The obligor is...
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Person rendering a performance
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The obligee is...
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Person receiving benefit of the performance
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Difference between conventional obligations and other declarations of will is...
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Conventional require 2 parties
Other declarations of will requires 1 |
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Can juridical persons form natural obligations?
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No - lack ability to have a strong moral feeling
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An oligraphic will is...
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Completely handwritten
Dated and signed |
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A notarial will is...
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Notarized
2 witnesses Signed at the bottom |
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2 Effects of a Natural Obligation
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1. Anything freely given in performance of a natural obligation cannot be reclaimed
2. Contracts formed from the performance of a natural obligation are legally enforceable |
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3 Ways a Contract can be Dissolved
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1. Consent of the parties
2. The law 3. Performance |
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Where must a complaint on a contract be brought?
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In parish where . . .
contract was executed work or service was performed work or service was going to be performed |
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What is the most common type of conventional obligation?
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Contract
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4 Requirements to Form a Contract
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Capacity
Consent Object Cause |
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2 Types of Consent
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Real
Free |
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Components of Real Consent
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Offer
Acceptance |
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3 Vices of Free Consent
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Error
Duress Fraud |
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When does an error bear on a principal cause of a contract?
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Its of the nature of the contract
Thing that is the contractual object Substantial quality of the thing Person or qualities of the other party Law Anything else |
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Everyone has capacity except...
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Un-emancipated minors
Some interdicts PDR |
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3 Ways a Minor can become Emancipated
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Judicially
By marriage Authentic act |
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The difference between limited and full interdiction is...
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Full: person AND property
Limited: person OR property |
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2 Types of Capacity
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General Legal - Capacity of Enjoyment
Special Legal - Capacity of Exercise |
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Other Name for General Legal Capacity...
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Capacity of Enjoyment
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Other Name for Special Legal Capacity...
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Capacity of Exercise
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Who has general legal capacity/ capacity of enjoyment?
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Everyone
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Who has special legal capacity/ capacity of exercise?
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Everyone but:
Unemancipated minors Some interdicts Persons deprived of reason |
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The age of majority is...
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18 - can start to enter into contracts
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When can a contract not be relatively null based on capacity?
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When a minor represents himself to be 18 and other person reasonably relies on it
Contract for minor is related to (1) business, (2) support, (3) OR education If onerous contract, the other can show the PDR was not noticeable at the time |
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If complete in form, when is an oral contract not valid?
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If both parties had agreed that the contract would be put into writing to be finalized
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A revocable offer occurs...
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When the offer is not irrevocable
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An offeror can revoke a revocable offer when...
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Anytime before the offeree accepts the offer
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When is a written revocation of a revocable offer effective?
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(1) Comes into the possession of the offeree or their mandate
(2) Deposited into a place where you receive similar forms of communication |
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When is an oral revocation of a revocable offer effective?
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Unknown, the code does not address
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5 Situations Where a Revocable Offer Lapses
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If, before the offer is accepted...
(1) Offeror dies (2) Offeree dies (3) Offeror becomes incapacitated (4) Offeree becomes incapacitated (5) A reasonable period of time elapses |
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Acceptance of a revocable offer is effective when...
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When it is transmitted by the offeree aka when the offeree mails the acceptance
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An offer is irrevocable when...
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(1) During the time period specified IF the offer specifies a specific period of time
(2) During a reasonable period of time IF the offeror states the offeree can delay acceptance (3) IF offerer states acceptance can only become accomplished by performance, AND performance has already begun, BUT irrevocable ONLY during reasonable period of time required to complete performance |
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If an irrevocable offer can only be accepted via performance, what should the offeree do?
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Promptly notify the offeror of commencement of performance
UNLESS It is reasonable that the offeror knows or should have known that performance has begun |
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Does an offeree always need to notify the offeror that performance has begun if the offer was irrevocable?
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No.
If it is reasonable that the offeror knows or should know that performance has begun, the offeree need not notify the offeror they have begun performance |
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7 Situations Where an Irrevocable Offer Lapses
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If, before the offer is accepted...
(1) Offeror dies (2) Offeree dies (3) Offeror becomes incapacitated (4) Offeree becomes incapacitated (5) A reasonable period of time elapses (6) Time period specified in offer expires (7) Performance begun, but not completed. Will elapse after reasonable period of time it would have taken performance to be completed |
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Acceptance of an irrevocable offer is valid when...
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When received by the offeror
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Difference between when the acceptance of a revocable or irrevocable offer is valid...
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Irrevocable - when received by the offeror
Revocable - when transmitted by the offeree |
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Does the "good feeling" associated with giving or doing something for someone constitute "getting something in return" in an obligation?
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No. The return generally must have a monetary value or be a right.
As in gratuitous contracts |
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What is the strictest form of written contract?
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Authentic act / notarial act
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Other name for an authentic act is...
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Notarial act
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An authentic act requires...
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Notary
Two witnesses Written contract At least two parties |
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An example of an authentic act is...
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Donation of immovable property
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An example of an act under private signature duly acknowledged is...
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Matrimonial agreement aka prenup
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An example of an act under private signature is...
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Sale
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How does an act under private signature duly acknowledged come to be?
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An act under private signature is taken to a notary or the court and an affidavit is signed in front of two witnesses.
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When an act under private signature becomes an act under private signature duly acknowledged, does it have the same "strength" as an authentic act?
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No
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Do you need to explicitly state cause?
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No. It is presumed.
Stating a cause in a contract might minimize error. |
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3 Requirements of a Third Party Beneficiary Contract
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1. Intent for it to be a 3PB contract must be manifestly clear
2. The benefits need to be certain 3. Benefit must not not incidental - must be the primary cause of the contract |
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Do all third party beneficiary contracts need be in writing?
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No, they do not need to be in writing.
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3 Ways a Contract is Absolutely Null
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Object is illegal
Cause is illegal Form problem |
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When is a contract absolutely null?
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When it violates a rule of public order.
Object is illegal Cause is illegal Form problem |
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Can an absolutely null contract be confirmed?
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No
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Who can request a contract be declared absolutely null?
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1. Anyone
2. Court on its own initiative |
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When does an absolutely null contract prescribe?
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Never
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When a contract is declared absolutely null, the effect of the contract is...
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1. Presumed to have never existed (null from the beginning)
2. Parties are returned to their status prior to the sale 3. You need to pay damages if you cannot return the other party back to the status quo |
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3 Effects of an Absolutely Null Contract
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1. Presumed to have never existed (null from the beginning)
2. Parties are returned to their status prior to the sale 3. You need to pay damages if you cannot return the other party back to the status quo |
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2 Ways a Contract is relatively Null
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1. When a party lacks capacity
2. When consent is not free |
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When is a contract relatively null?
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When it violates a rule that protects an individual or group of people
1. When a party lacks capacity 2. When consent is not free |
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Can a relatively null contract be confirmed?
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Yes
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Who can have a contract be declared relatively null?
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Person whose interest is the ground for nullity
OR their legal representative |
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When does a relatively null contract prescribe?
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5 years from when
1. Incapacity ceases 2. Duress is removed 3. Error or fraud is realized |
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What is the effect of a contract that has been declared relatively null?
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The contract no longer exists
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What two types of actions can a 3PB bring against parties in a contract?
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Revocatory action
Oblique action |
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When does a revocatory action arise?
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When a 3P seeks to undo an obligation so that they can be repaid for their debts
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2 times a revocatory action cannot be brought
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To get a windfall
If K occurred in natural course of business |
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An oblique action can be brought when . . .
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A 3P sues for breach of contract, given they are a creditor for a party in a contract and they seek to recover damages from the party in breach on behalf of the hurt party
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3 requirements for a revocatory action to arise
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1. K already in place between o'gor and o'ee
2. o'gor enters new contract with another 3. second contract causes/increases o'gor insolvency |
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Someone quits their job before entering a K, what could arise?
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Detrimental reliance
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Elements of detrimental reliance
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1. Promise/representation
2. Reliance on promise/rep. 3. Reliance is reasonable 4. Reliance led to detriment 5. Promisor knew or should have known promisee would rely |
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2 types of simulations
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Relative
Absolute |
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Diff between relative and absolute simulation
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Relative - parties intend contract to do something other than what the contract states
Absolute - parties intend the contract to not have any affect |
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Are simulations legally effective?
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Only relative
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What normally is present with an absolute simulation?
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A counter-letter expressing the parties' true intent
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What is a contract called that has a false cause?
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Simulation
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When is a cause not present?
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When it no longer exists - example: want to buy a live horse but it dies
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Elements of cause
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Lawful
Present Not unintentionally false |
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Does cause need to be stated in contract?
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No - presumed
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Requirements of a 3PB contract
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(1) Intent for it to be 3PB must be manifestly clear
(2) 3PB benefits cannot be incidental - must be primary cause (3) Courts wil not presume the existence of a 3PB contract (4) 3PB is assumed to have consented (5) Does not need to be in writing |
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If a 3PB has availed himself of his right, what can the parties to the contract do?
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Cannot dissolve or revoke the contract
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If a 3PB has NOT availed himself of his right, what can the parties to the contract do?
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Parties can dissolve
Parties can revoke 3PB right - contract would still exist |
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Can a 3PB reject right to receive benefit?
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Yes
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Diff. between promesse de porte forte and stipulation pour autrui?
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PDPF - object to get 3P to perform
SPR - object is benefit for 3P |
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In a promessee de porte forte, who is liable if the 3PB does not want to perform?
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Obligee stating the 3PB would perform, but 3PB if he already agreed to perform
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In a stipulation pour autrui, who can demand performance
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3PB
or obligee on behalf of 3PB |
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When is a cause considered impossible?
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When it cannot be done by anyone in the world
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In terms of an object "being in existence," what can you not sell?
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Your right to receive things in an accession
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Diff. between sale of future things and sale of a hope.
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In sale of future things - if the future thing never happens, K never exists.
In sale of a hope - one party will always have to perform |
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Example of sale of future thing
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Buying a custom desk from R, but his hands get cut off and he can no longer make it. Neither party is in contract anymore.
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Example of a sale of a hope
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I'll buy all the fish you catch today for $100
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What does determined as to kind mean?
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Special qualities of a thing are determined (color)
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What does determinable as to quantity mean?
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Number of things being sold are determined
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Can you have a 3P determine quantity? What happens if they don't want to anymore?
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Yes
Court will determine if they don't want to |
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If quality of object is not stated in the contract, you must . . .
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Not give the party the worst object
But you don't need to give the best object |
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Elements of Object
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Lawful
Possible Determined as to kind AND determinable as to quantity Quality |
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Determined as to ___[A]___
Determinable as to ___[B]___ |
A. Kind
B. Quantity |
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What is not duress?
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Something in lawful appearance only
Economic duress Threatening with a lawsuit Bad advice of a 3P |
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What vices can you recover attorneys fees for?
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Duress and fraud
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Elements of duress
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1. Reasonable
2. Fear 3. Injury 4. Unjust and considerable 5. To person, property, or reputation 6. Directed at party in K, ascendant, descendant, sometimes other 3P |
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If duress is not directed at you, your ascendants or descendants, can you still attempt to nullify the contract?
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Yes - if the threat is towards another 3P, the court looks at if there was a close relationship of affection
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If both parties in a K are subject to duress, will both parties always be awarded damages?
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No.
If one party knew about the duress, the aware party is liable to the unaware party as well. |
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Other name for duress
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Violence
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Two prong test of fraud
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Misrepresentation or suppression of a truth
intention to gain an unjust advantage or cause a loss or inconvenience |
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Is puffing fraud?
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No. A person is expected to know the nature of advertising
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When is silence fraud?
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When you had a duty to speak but you didn't.
Duty comes from law or special relationship |
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Is a k vitiated when a party to the k committed fraud?
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Yes
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When does a 3P's fraud vitiate consent?
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When the party benefiting from the fraud knew or should have known about the fraud
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If the truth is easily ascertainable in relation to fraud, can fraud still be claimed?
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Yes - if a relationship of confidence reasonably induced a party to rely on another's statements
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What does fraud need to be plead with?
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Preponderance of the evidence
Specificity |
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What must error be plead with?
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Clear and convincing evidence
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When does a unilateral error vitiate consent?
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(1) Bears on principal cause
(2) Principal cause known or should have been known by other party |
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Categories of principal cause
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Nature
Object or substantial quality of the object Person or substantial quality of the person Law Everything else |
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If there is a bilateral error - what happens? What about unilateral?
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Can rescind contract.
Can only rescind unilateral if it vitiates consent |
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Rule for form of acceptance
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GR: No form requirement
UNLESS: Law dictates form UNLESS: Parties state specific form requirement UNLESS: Offeror requires one |
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Nonconforming acceptance is also . . .
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A counter offer - when acceptance is not identical to the offer. Is a new offer
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Acceptance of a revocable offer is effective when:
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Offeree mails notice of acceptance
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Acceptance of an irrevocable offer is effective when: |
Offeror receives notice of acceptance |
