Obs-Intro, Classification

Front 1

Sources of Law.

Back 1

The sources of law are legislation and custom.

Legislation and custom are primary sources of law.

Front 2

Custom

Back 2

Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.

According to civilian theory, the two elements of custom are a long practice and the conviction that the practice has the force of law.

Front 3

Legislation

Back 3

legislation is the superior source of law in Louisiana.

Front 4

Definition of OB

Back 4

An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee.

Front 5

Natural OB

Back 5

A natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance.

Front 6

Examples of circumstances giving rise to a natural obligation:

Back 6

Examples of circumstances giving rise to a natural obligation are:
(1) When a civil obligation has been extinguished by prescription or discharged in bankruptcy.
(2) When an obligation has been incurred by a person who, although endowed with discernment, lacks legal capacity.
(3) When the universal successors are not bound by a civil obligation to execute the donations and other dispositions made by a deceased person that are null for want of form.

Front 7

Effects of a natural obligation

Back 7

A natural obligation is not enforceable by judicial action. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not be reclaimed.

The word “freely” in the second sentence of this Article means that the performing party must have acted without outside compulsion by fraud or violence. It does not mean that his performance cannot have been induced by error

Front 8

Sources of obligations

Back 8

Obligations arise from contracts and other declarations of will. They also arise directly from the law, regardless of a declaration of will, in instances such as wrongful acts, the management of the affairs of another, unjust enrichment and other acts or facts.

Front 9

Management of affairs

Back 9

There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.

Front 10

Obligation that does not exist

Back 10

A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.

Front 11

Action on contract

Back 11

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

Front 12

General effects of legal obs

Back 12

A. An obligation may give the obligee the right to:
(1) Enforce the performance that the obligor is bound to render;
(2) Enforce performance by causing it to be rendered by another at the obligor's expense;
(3) Recover damages for the obligor's failure to perform, or his defective or delayed performance.
B. An obligation may give the obligor the right to:
(1) Obtain the proper discharge when he has performed in full;
(2) Contest the obligee's actions when the obligation has been extinguished or modified by a legal cause.

Front 13

Good faith. effects of legal obs

Back 13

Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.

Front 14

Definition of contract.

Back 14

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.

Front 15

Freedom of K; Law for the parties; performance in good faith.

Back 15

Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.

Front 16

Freedom of K; Laws for the preservation of the public interest.

Back 16

Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.

Front 17

Unilateral contracts

Back 17

A contract is unilateral when the party who accepts the obligation of the other does not assume a reciprocal obligation.
1 of the 2 has a duty.
ex: Donation

Front 18

Bilateral contracts.

Back 18

A contract is bilateral when the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other.
Both have duty.
Ex: Most Ks

Front 19

Onerous contracts.

Back 19

A contract is onerous when each of the parties obtains an advantage in exchange for his obligation.
Each party gets something back.

Front 20

Gratuitous contracts.

Back 20

A contract is gratuitous when one party obligates himself towards another for the benefit of the latter, without obtaining any advantage in return.
One person gives, the other gets nothing back.

Front 21

Form required for donations.

Back 21

A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.

Front 22

Sale of immovable, method of making.

Back 22

A sale or promise of sale of an immovable must be made by authentic act or by act under private signature,

Front 23

Principal and accessory contracts.

Back 23

A contract is accessory when it is made to provide security for the performance of an obligation. Suretyship, mortgage, pledge, and other types of security agreements are examples of such a contract.
When the secured obligation arises from a contract, either between the same or other parties, that contract is the principal contract.
Principal- stand alone k; ex: Home loan
Accessory- secures principal k; ex: mortgage on the home loan

Front 24

Nominate and innominate contracts.

Back 24

Nominate contracts are those given a special designation such as sale, lease, loan, or insurance.
Nominate- given a name
Innominate- no name, no special designation

Front 25

Rules applicable to nominate contracts

Back 25

Nominate contracts are subject to the special rules of the respective titles when those rules modify, complement, or depart from the rules of this title.

Front 26

Commutative contracts

Back 26

A contract is commutative when the performance of the obligation of each party is correlative to the performance of the other.
Always bilateral k’s

Front 27

Aleatory contracts.

Back 27

A contract is aleatory when, because of its nature or according to the parties' intent, the performance of either party's obligation, or the extent of the performance, depends on an uncertain event.
ex: insurance k

Front 28

Sale of a hope.

Back 28

A hope may be the object of a contract of sale. Thus, a fisherman may sell a haul of his net before he throws it. In that case the buyer is entitled to whatever is caught in the net, according to the parties' expectations, and even if nothing is caught the sale is valid.

Front 29

Sale of future things.

Back 29

A future thing may be the object of a contract of sale. In such a case the coming into existence of the thing is a condition that suspends the effects of the sale.

Front 30

Refusal to perform.

Back 30

Either party to a commutative contract may refuse to perform his obligation if the other has failed to perform or does not offer to perform his own at the same time, if the performances are due simultaneously.

Front 31

Delivery excused until payment of price and for insolvency.

Back 31

The seller may refuse to deliver the thing sold until the buyer tenders payment of the price, unless the seller has granted the buyer a term for such payment.

Front 32

Consensual

Back 32

Valid upon consent.

Front 33

Solemn

Back 33

Valid upon consent and the form requirement.

Front 34

Authentic act.

Back 34

An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.

Front 35

Act under private signature duly acknowledged.

Back 35

An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.
An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.

Front 36

Act under private signature.

Back 36

An act under private signature need not be written by the parties, but must be signed by them.

Front 37

Legal recognition of electronic records, electronic signatures, and electronic contracts

Back 37

If a law requires a record to be in writing, an electronic record satisfies the law.
If a law requires a signature, an electronic signature satisfies the law.

Front 38

Bargain for v. Adhesion

Back 38

“Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.”

Front 39

4 Substantive Requirements of a Valid Contract

Back 39

Capacity
Consent
Object
Cause

Front 40

Result of Failure to Satisfy All 4 Requirements; Nullity of contracts.

Back 40

A contract is null when the requirements for its formation have not been met.

Front 41

Absolute nullity of contracts

Back 41

A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

Front 42

Relative nullity of contracts.

Back 42

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

Front 43

Prescription of action to annul

Back 43

Action for annulment of an absolutely null contract does not prescribe.
Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.
Nullity may be raised at any time as a defense against an action on the contract, even after the action for annulment has prescribed.

Front 44

Confirmation

Back 44

Confirmation is a declaration whereby a person cures the relative nullity of an obligation.
An express act of confirmation must contain or identify the substance of the obligation and evidence the intention to cure its relative nullity.
Tacit confirmation may result from voluntary performance of the obligation.

Front 45

Ratification.

Back 45

Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
An express act of ratification must evidence the intention to be bound by the ratified obligation.
Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.