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26 Cards in this Set
- Front
- Back
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Art. 1927
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CONSENT
A contract is formed by the consent of the parties established through offer & acceptance. Unless the law proscribes a certain formality for the intended contract, offer & acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the offer is accepted. |
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Art.1927 CONSENT
Special Notes |
Note the FORM:
Unless the law specifically requires it, O & A may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. Note that INFORMAL IS FINE: A perfectly informal, formless promise is enough, says the Civil Law; unless the law requires it do be more. Note what has to be in WRITING: Real Estate transfers; Executory donation (Art. 1536) must be in writing & notarized. (I'll donate next year); Conventional mortgage (not legal mortgage) but one that is agreement between you and bank; Creating a Partnership;Antenuptial contracts; Corporations; Promise to pay debt of a 3rd person. Note what DOESN'T have to be in writing: In the alternative, a lease of an immovable doesn't have to be in writing; since not a transfer of the immovable, just a rent of it. Note what's NORMAL: The above are only a few; note that most of time we have the freedom to create Ks with no particular form. |
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Art. 1928
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Irrevocable Offer
When an offer specifies a period of acceptance it is irrevocable for that time. (offer that allows you ten days to accept is irrevocable for 10 days) or an offer that doesn't specify a time but leaves it open for a period of time, then it will be open for a reasonable time (the distinction is between k with fixed term and k without) Tell your landlord you'll talk to your wife, he says he'll wait: It expires in a reasonable time, its fuzzy, but thats why there is no fixed term No notice of consideration: The offer is open without consideration; thats the Civ Law |
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Art. 1929
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Expiration of Irrevocable Offer for Lack of Acceptance
When the time of an irrevocable offer expires, it expires. Can't accept after the expiration time: Either of the fixed or the reasonable period. |
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Art. 1930
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Revocable Offer
Another type of offer, meant to be revocable, and offeror made no promises about how long it would be open. It expires after a reasonable period of time. |
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Art. 1931
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Expiration of Revocable Offer
A revocable offer expires if not accepted within a reasonable time. |
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1932
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Expiration of Offer by Death or Incapacity of Either Party
An offer also expires by death or incapacity of either party. (Surprising? What if parties are at a distance: CA to NOLA- dead even with reliance) Because once an offer is accepted then the party is bound, and then he dies, but in the offeror-offeree stage, when one dies, the offer dies. Even though it can cause lots of reliance issues; its peculiar says Palmer that the law doesn't attach more importance to it. This includes irrevocable offers. (because the Code oesn't say what type of offer, says an "offer"). Any type of offer can create reliance (even if irrevocable offer creates more by the nature of its provisions). Sorry if someone dies. |
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Art. 1933
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Option Contracts
As opposed to an offer, 1933 is an option contract; not an OFFER; because this is transferable, veritable, and heritable. If one of the parties to an option contract dies, the whole transaction doesn't fall, since it passes on to his decedents unless it is a strictly personal obligation. So compared to 1932, where that offer dies, and 1932 doesn't refer to a veritable contract, it won't go away. Option contracts are distinguishable from irrevocable offers, it is a veritable contract that can be assigned (there is no requirement for consideration,it could be gratuitous, or onerous (meaning you did expect something in return-or did get something) but its not required, could be either). NOTE: 1) At Common Law there is no good option k without consideration. 2)As for "strictly" personal: the notes don't say strictly, but Palmer says thats not enough; so its strictly for our purposes. |
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Art. 1934
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Time When Acceptance of An Irrevocable Offer is Effective
(THIS IS DISTINCT FROM REVOCABLE) When it is irrevocable, effective upon RECEIPT by the offeror. (see 1938: When received by him, or a person authorized to receive it, or is deposited in a place where indicated that it could be received. DOES NOT matter that he doesn't go check his box, in other words, wherever he indicates is fine Upon receipt- came into the zone of possession of his exclusive control. Once its there, then there is an objective view of what it means to recieve, even without your personal knowledge of it. Its not a knowledge theory) |
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Art.1935
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Time When Acceptance of a Revocable Offer is Effective
ONLY EXCEPTION to Reception theory: 1935--> if you're sending out a revocable offer, acceptance is effective is upon DISPATCH/TRANSMITTED If prove that I sent it by email but you didn't get it and something is wrong with your email or whatever, but I sent it, TOO BAD just my dispatch (my transmission) is SUFFICIENT. Or if I send a letter answering your revocable offer, and you never recieve it for whatever reason, then its effective anyway: The risk is on the offeror, because its effective when transmitted. Why make one exception for the revocable offer? All of this reception theory and one exception? For the period of time that you're waiting after your acceptance, you need to know thats how you should act. They seem to be thinking that because revocation can come at anytime, and he has to recieve it for it to be valid, but it could even overtake the offer: For reliance purposes, the offeree is entitled to be able to have an effective reply for the earliest possible moment. |
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Obligation of Result
v. Obligation of Means |
Obligation of Result
Performance or object of obligation is so precisely determined as to amount to a definite result to be achieved. -Ex: obligation to give a specific thing or obligation not to do something -Only have to prove you did not get the result you sought v. Obligation of Means Obligor is expected to use the best possible means available to him, or to act with the utmost care and diligence in the performance of his obligation, but without guaranteeing a definite result |
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Art. 1756 Obligations
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a legal relationship whereby a person (obligor) is bound to render a performance in favor of another (obligee). Performance may consist of giving, doing, or not doing something.
-Arise from contracts and other declarations of will. -Types: real or natural |
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Arts. 1763-1764
Real Obligations |
-A duty correlative and incidental to a real right
-Real right is the antitheses of personal rights. -Attaches to a thing -Ex: servitude, mortgage (The mortgagee has a mortgage right over an immovable) -Obligation is incorporated in the thing on which it bears -Heritable, assignable, and transferable with the thing |
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Art. 1763
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Real Obligation
A real obligation is a duty corelative & incidental to a real right. |
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Art. 1765
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Heritable Obligations
Can pass from one person to another; when its performance may be enforced by the successor of the obligee or against a successor of the obligor, an obligation is heritable. -Presumption is that every obligation is deemed heritable as to all parties, but there are exceptions, for example, when the contrary results from the terms or from the nature of the contract. -Heritable obligation is also transferable between living persons (assignable). -Can be carried out by someone other than the actual obligor; therefore, the death or incapacity of the original obligor seldom terminates a heritable obligation. |
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Art. 1766
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Strictly Personal Obligations
Palmers Examples: Lessons, marital engagements. (Note that these are seemingly only personal. But these are taken from cases, not exactly accurate. Watch for 'this doesn't change the law' in Code) Characteristics: Cannot be assigned. Cannot be delegated. Can be on only one side, or Strictly Personal on both sides. More examples: lawyer services, medical services. NOT: Loan of money, sell a TV, since they are assignable. |
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Act
v. Fact |
Act:
expression of will, intention (think of freedom from contract: individuals are free to enter into a contract or not) Fact: event devoid of any will |
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Art. 7
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Laws for the Preservation of the Public Interest
Individuals are free to their contract w/ content, of any kind they want, provided it doesn't offend public order. We are free to do anything in contracts as long as it doesn't offend public interest; any act in derogation of such laws is an absolute nullity. (as a contract for murder= absolute nullitous) |
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Juridical Act
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Any declaration of the will by which a person intends to change his position; as a declaration must be valid (no arm twisting). Exs: adoption, change will, in some cases marriage. You are changing your legal position.
Law as opposed to a social intention can sanction intent; manifestation of will meant to have legal effects. Most basic exampe: contracts (conventional obligations) 2 Kinds: 1.Unilateral Juridical Act legitimation, acknowledgement, will, etc. involves only 1 will or intent sufficient to create legal effects. 2.Bilateral Juridical Act: requires 2 intentions of 2 parties that create legal effects. Ex: sale or donation. |
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Art. 389 Interdiction
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Full Interdiction
A court may order the full interdiction of a person of the age of majority, or an emancipated minor, who, due to infirmity, is unable to consistently make decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. Is a LAST resort. CASE:Julius Cohen Jeweler, Inc (Senator buying jewelry; A contract is valid where a person contracts with someone who may be deprived of reason if that person doesn't know that (or couldn't have known that). He's entitled to be paid for the jewelry that he didn't get back. Unless you can say he was notoriously insane, then a person dealing with him should have known- in this Case, the jeweler found out 2 days after) |
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Art. 390
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Limited Interdiction
Still subject to the reservation that only when their interests cannot be restricted by less restrictive means. |
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Art. 1918 Capacity
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Legal aptitude to enjoy and exercise subjective rights as a subject of law.
A requirement of a contract. All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting. Applies to both natural and juridical persons. Capacity presupposes legal personality, but personality and capacity do not always go together.(Possible candidates for interdiction) |
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4 Requirements of Contract:
Orange County California Coast |
O: Object
C: Consent C: Capacity C: Cause |
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In LA, we have departed from general French law in a very significant way: In France, to attack a contract due to incpacity of a minor, not only do you have to show the age incapacity (Well I was 17) but some economic lesion, or detriment, has to have occurred. Without that you do not have the ability to rescind on the grounds of incapacity. In LA, age alone is the requirement.
Ex: a minor sold some land below market price, and wishes to disaffirm. He succeeds in France. But say he sold above market price, then that means he can't prove invalid because there is no disadvantage. Measure at the time of sale-- even if he loses later because the sale at that time was good but now bad. In France, lesion cannot be an accident. CODE: Art. 1919: A contract with a person without legal capacity is relatively null & may be rescinded ONLY at the request of that person or his legal rep. Art. 1921: If rescinded on incapacity, each party restores whatever recieved, but for LESION, Art. 2591 says that when a sale of an immovable is rescinded for lesion, the buyer may elect to either return the immovable or keep it and give the seller a supplement det. by a fair price. Art. 1923: You can rescind a contract with an unemancipated minor on the grounds of incapacity ALONE, EXCEPT when the contract is made for the purpose of providing the minor with something that is necessary. CASE: Farrar (Swedish health spa) ALSO: Art. 1924 says that the mere representation of majority by an unemancipated minor doesn't preclude an action for rescission of contract. However, when the other party reasonably relies on the minors representation of contract, the contract may not be rescinded. |
Relevance of Simple Lesion to the Rescission of a Contract Due to the Inacapacity of a Minor
*FROM OLD EXAM* |
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Art. 1941 Notice of Commencement of Performance
When commencement of the performance either constitutes acceptance or makes the offer irrevocable, the offeree must give prompt notice of that commencemnt unless the offeror has begun to perform. An offeree who fails to give the notice is liable for damages. Palmer: When commencement of performance either constitutes acceptance or makes the offer irrevocable, the offeree must give prompt notice of that commencement unless the offeror knows or should know that offeree has begun. How to Give Notice: Art. 1936: Reasonableness of Manner & Medium of Acceptance A medium or manner of acceptance is reasonable if it is the one used in making the offer or one customary in similar transactions at the time and place the offer is recieved, unless circumstances known to the offeree indicate otherwise. Notice to perform is NOT required for offers for rewards. |
When is Notice to Perform Required? How is it Established?
*FROM OLD EXAM* |
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Art. 1933 Option Contracts
An option is distinguishable from an irrevocable offer because an option is a veritable contract that may be assigned and that gives rise to rights & obligations that devolve upon the parties' heirs when not personal to the parties (heritable). An irrevocable offer is not assignable, and it expires at the death of either the offeror or the offeree Palmer: As opposed to an offer, 1933 is an option contract; not an OFFER; because this is transferable, veritable, and heritable. If one of the parties died to an option contracts, the whole transaction doesn't fall, since it passes on to his decedents unless it is a strictly personal obligations. So compared to 1932, that offer dies, doesn't refer to a veritable contract, it is distinguishable from an irrevocable offer, it is a veritable contract that can be assigned (there is no requirement for consideration,it could be gratuitous, or onerous (meaning you did expect something in return-or did get something) but its not required, could be either). NOTE: 1) At C/L no good option k without consideration. 2) strictly personal: the notes don't say strictly, but Palmer says thats not enough. so for us, think strictly. |
Distinction Between Legal Effects of Option Contracts
v. Legal Effects of Irrevocable Offers *FROM OLD EXAM* |
