LOUISIANA CIVIL LAW TREATISE Volume 5 ______
Part I Obligations in General Book III, Title III Louisiana Civil Code
by
Saúl Litvinoff ______
CHAPTER I GENERAL PRINCIPLES
§ 1.1 Definition commercial law, for example, the word "obligation" may mean a negotiable instru- The word "obligation" has more than one ment, such as a promissory note or draft, or a meaning. As is generally the case with words bond or debenture issued by a corporation or that mean more than one thing; the precise a public agency. signification intended by one who speaks or writes such a word depends on the context in In the technical terminology of the civil which it is used. Thus, in its more general codes, however, the word "obligation" means acceptation, the word "obligation" means a legal bond that binds two persons in such a something that the law or morals command a way that one of them, the creditor or obligee, person to do, a command that is made is entitled to demand from the other, the effective by the imposition of a sanction if the debtor or obligor, a certain performance. Thus, person fails to obey or comply. When given for example, when two persons make a that reference, the word "obligation" is made contract of sale, one of them, the buyer, may synonymous with the word "duty." In that demand from the seller delivery of the thing sense it is said, for example, that all citizens of sold, and the seller may demand from the a certain age are under an obligation to fulfill buyer payment of the price.' Likewise, when their military duties, that all members of a because of his fault a person causes damage to organized community are under an obligation another, the victim of the wrong may demand to pay taxes, that all landowners are under an reparation from the wrongdoer. obligation to comply with municipal ordinances that concern their property. The The Louisiana Civil Code uses the word same meaning is intended when reference is "obligation" in its technical meaning when it made to an obligation to help those in need. defines it as a legal relationship whereby a person, called the obligor, is bound to render In another sense, the word "obligation" a performance in favor of another, called the means an instrument in writing, however obligee. The same definition further explains informal, whereby one party contracts with that the performance may consist of giving, another for the payment of a sum of money.nI doing, or not doing something.
-1- Thus defined, it is clear that, in the and, if specific performance is not possible, technical meaning of the civil codes-the the creditor's interest may be satisfied by an Louisiana one in particular-obligation means award of damages. For that purpose, the more than just duty. In a legal relation, which debtor is liable with all his patrimony, which presupposes at least two parties, the duty is is the common pledge of his creditors. confined to one of them, the debtor or obligor, who is the one subjected, or "under," the The economic value of the performance obligation, so that his way in which he must a debtor or obligor must render is relevant in conduct himself in order to render that which order to determine that a certain bond is expected from him.' At the other end, constitutes an obligation in its strict technical however, on the part of the creditor or obligee, sense.' That is explained in modern civilian there is a right that entitles him to demand terminology by saying that a legal relation is performance of the duty. As an abstract bond, technically an obligation when it gives the the obligation, the legal relation, links the obligee a credit-right. As an asset in his right to the duty and makes those concepts patrimony, the creditor or obligee may transfer correlative, so that they cannot exist-nor can or assign the obligation to another if he so they even be thought of-the one without the wishes. Also, the debtor may substitute other." another person at his end of the relation. In both instances the obligation remains the It can be said, in this perspective, that same, however. every obligation contains a duty as a necessary element, but that not every duty amounts to an In this perspective, the relation involved obligation." Thus, the existence of a duty of in an obligation in the technical sense has to charity, or of social solidarity, cannot be be distinguished from the one existing in other denied in the moral realm, but the situations such as, for example, the nonexistence of a right to demand charity parents-child relation. Thus, a child is under from others clearly explains that such duty is duty to obey his parents and the parents have not an obligation. Even at law, the general a right to demand obedience from their child. duties not related to. a definite, particular and It could be said, then, that a legal relation concrete performance, such as the duty not to exists between those parties whereby one is cause injury to another or the duty to act with bound to render a certain performance to ordinary prudence, though undoubtedly another, which constitutes, precisely, an "legal" in the sense that legal consequences obligation, very much as in the case of lender may be attached to the dereliction of such and borrower, where the latter is under a duty duties, are not obligations in a technical sense. to return the money he borrowed and the former has a right to demand that the money § 1.2 Patrimonial Aspect, Credit-Right be returned.' That is not so, however. What is expected from the child is not the kind of A further restriction to the civil code performance a creditor may demand from his concept of obligation is the connection that debtor when they are bound by an obligation exists between obligation, in its technical in the technical sense. In the case of the child, sense, and patrimony, so that the right that an the duty he owes is not for the satisfaction of obligation gives the creditor or obligee is a any particular interest of the parents as patrimonial right, that is, a right the purpose of creditors or obligees, but for the attainment of which is the satisfaction of the creditor's values that transcend the interest of the parties economic needs by means of the performance involved and rank very high in the scale of the that the debtor must render.' If the debtor does community, such as the welfare of children, not perform voluntarily, the creditor, through their education, and the strengthening of the aid of the court, may compel him so to do, family ties." In that situation, as in many
-2- others of the same kind, such as the relation natural or juridical, even an unborn natural existing between spouses who owe each other person, can be the holder of a credit-right. It is reciprocally a duty of fidelity, the obligation noteworthy that the general ability to engage, that exists is called institutional, because the actively or passively, in obligations constitutes parties are immersed in an institution which, the essential feature of legal personality. in this context, is to be understood as a Although at least one creditor and one debtor situation existing between persons, or between are necessary for an obligation, there can be persons and things, regulated by the law more than one person at either end, or both according to ideas and patterns of behavior ends, of the relation. The number of persons deeply rooted in societal life and intended to involved is one of the criteria according to last for a long time. which obligations are classified since, whenever there is more than one person at Institutional obligations lack the either of the ends, or at both, the obligation patrimonial aspect, they are not a part of a may be either several, or joint, or in solido. person's patrimony, and therefore they may not be transferred or assigned. That is the The legal bond, the vinculum juris, that feature that distinguishes institutional binds the subjects contains the legal substance obligations from obligations in a technical of an obligation. It is to the legal bond that the sense. Nevertheless, an obligation in the civil main effect of an obligation in a technical code sense may result from an institutional sense is appended, namely, the creditor's relation. Thus, as administrator of his child's power and ability to exercise his right and estate, a father may be liable to his child for a enforce the debtor's duty.' It is in connection strictly pecuniary debt. When that is the case, with the legal bond that the state places the because of a bond institutional in origin, the might of its organs at the creditor's disposal in parties find themselves bound by the same order to compel performance from a debtor kind of bond that exists, for example, between who does not render it voluntarily. The lender and borrower, since there is a presence of those organs in the background as well-defined creditor, there is also a an essential feature has prompted the assertion well-defined debtor, and the latter must render of modern doctrine that, in a technical sense, to the former a performance which is an obligation is actually a tripartite relation patrimonial in nature. between a creditor, a debtor, and the state. It is that presence that makes of an obligation a § 1.3 Structure: Subjects, Legal Bond and legal one and distinguishes it from a moral Object obligation, which, for the lack of a legal bond, is not enforceable at law. The different forms From an analytical viewpoint it can be in which the legal bond binds the parties seen with immediacy that an obligation is furnish the basis to distinguish between civil comprised of three elements: the subjects, the and natural obligations, as they are enforced in legal bond that links them, and an object.' different ways.
There is in every obligation an active The belief is common that the object of subject, the creditor or obligee, to whom the an obligation is a thing. Some basis for that right to demand performance belongs, and a belief can be found in the Louisiana Civil passive subject, the debtor or obligor, who is Code, which, following its French model, under the duty to perform. In general terms, asserts in one article that the effect of any person can be the active or passive subject obligations is one of the modes of acquiring of an obligation. If the focus is placed on the the ownership of things or property. The active subject it can be said, resorting to origin of that conception can be readily traced modern terminology, that every person, to Pothier, who, at least in connection with
-3- obligations arising from contract, discussed The object of the performance is used in their object almost with the overtones of modern continental doctrine as a criterion to something tangible. That approach is only distinguish obligations de resultat, or partial, however. As seems to flow from obligations to provide a certain result, from another, and more to the point, article of the obligations de moyens, or obligations to Louisiana Civil Code, the true object of an provide certain means. In the former, the obligation is a performance that the creditor object of the performance is to provide a expects and the debtor must render: it is not certain desired result, while in the latter, that the thing that the debtor is supposed to give or object is to provide only certain means, to do, or even to abstain from doing, but his without implying any promise of achieving a act of giving, doing, or not doing. A more specific result. That classification is relevant subjective approach is thus substituted for a where the burden of proof is concerned. A purely objective one. If the creditor's failure to perform an obligation to provide a expectation is used as a vantage point, the certain result gives rise to a presumption of subjective approach proves to be realistic. fault on the part of the obligor, while in the Thus, even when a tangible thing is involved, case of failure to perform an obligation to as when the obligation is to pay a sum of provide certain means the obligor's fault must money, circumstances such as the debtor's be proved by the obligee. capacity, his reliability, his ability to pay, and his willingness to pay at a certain time and § 1.4 To Give, to Do and Not to Do place are material for the creditor who takes them into account as grounds for his The object of the performance is the expectation that the debtor will perform. If the criterion for the traditional classification of obligation is one to make repairs on a certain obligations in three categories, namely, thing, the repairman's technical skill and his obligations to give, obligations to do, and record of performance of similar obligations obligations not to do. In t h e f i r s t t w o are no doubt contemplated by the owner of the categories the performance consists of positive thing in his selection of that particular person acts such as giving or doing something, while to do the required work. It is because the in the third category the obligor is bound to object of an obligation stricto sensu consists perform through negative acts of abstention or of acts of the obligor or debtor, namely a forbearance. performance, that the law demands good faith from the subjects of an obligation and also The obligation to give is one whereby the that they behave according to certain standards obligor binds himself to transfer to the obligee of care and diligence. Closer analysis the ownership of a thing or to grant him some discloses without difficulty that those acts of other real right in a thing. The essential feature the debtor that constitute his performance are of such an obligation is that it is performed intended for the satisfaction of some need of simultaneously with the act from which it the creditor which may be accomplished by arises. In the case of a contract of sale of an giving him a thing, or rendering to him a individualized thing, for example, ownership service, or even by the debtor's abstaining is transferred to the buyer as soon as the from taking a particular course of conduct. In parties express their consent, and the seller's other words, the performance has an object of additional obligation to deliver the thing to the its own that may be, but is not always a buyer is an obligation to do, rather than one to corporeal thing. The conclusion is compelling give. On the other hand, when the thing on that, as an object of its own is comprised in a which the parties are contracting is not performance, that object is as much a part of individualized but is something that must be the creditor's expectation as the performance segregated from a mass of things of the same itself, which is the object of the obligation. kind, as in a sale by weight, tale, or measure,
-4- the obligation of the seller is one to do until from a real right in spite of the fact that both the time the thing or things are individualized. credit-rights and real rights are part of a It has been said that obligations to give are person's patrimony, that is, they share a rare in the system of the civil codes of French patrimonial nature. origin. A real right requires only one subject, the The obligation to do is one whereby the holder, who exerts a direct and immediate obligor binds himself to carry out or execute power over the thing which is the object of the an act, or a series of acts, other than the right. A credit-right, on the other hand, is just transferring of a real right, such as making or one end of an obligation and as such manufacturing something or rendering a presupposes an active subject, the creditor or service. Thus, when a painter binds himself to obligee, and a passive one, the debtor or paint a portrait, or a workman binds himself to obligor. work for a certain employer, or a lessor binds himself to allow the peaceful enjoyment of a Because it is exerted directly over a thing to the lessee, the obligation resulting thing, a real right is absolute in the sense that from such a situation is one to do.' The the one to whom it belongs holds it against essential feature of such obligations is that the everybody. A credit-right, on the other hand, obligor may not be physically compelled to is only relative because its holder may demand perform, so that in many instances the performance only from the debtor. obligee's remedy in case of nonperformance is limited to a recovery of damages. Because it is absolute, a real right entails a right to follow the thing subject to that right An obligation not to do is one whereby to whatever hands that thing may pass, and the obligor binds himself to abstain from also a right of preference, which is the holder's undertaking a certain course of action. Thus prerogative to prevail over, or be preferred to, when a person binds himself not to build on other claimants who have only credit-rights his land a building taller than a certain height against the person in possession of the thing or or not to use his property for a certain real rights of an inferior rank over that thing. purpose, or when the seller of a business binds A credit-right, on the other hand, entails himself not to compete with the buyer in the neither a right to follow nor a right of same trade, the resulting obligation is one not preference. Within the framework of an to do. The essential feature of obligations of obligation, a creditor seeking to enforce his that kind is that, in certain instances of credit-right can seize only that property that is nonperformance, the obligee's remedy may found in the patrimony of the debtor, and consist in the destruction of whatever the lacks the right to follow, or seize, any property obligor has done in violation of the obligation. that is no longer in that patrimony. All those It is noteworthy, also, that, for public policy holding only credit-rights against the same reasons, the law may restrict a person's debtor are on an even footing concerning freedom to restrict his freedom. property in the debtor's patrimony without being allowed to claim any preference. § 1.5 Obligation, Personal Rights and Real Nevertheless, a credit-right may be secured Rights with a real right, as when a debt arising from a contract of loan is secured by a real right of It has been shown that, in its technical mortgage granted over his property by the sense, an obligation gives the obligee a debtor. When such is the case that creditor is credit-right. That is so to the point that, in the preferred to other and unsecured creditors of obligee's perspective, the obligation is a that debtor, but that is so by virtue of the real credit-right. Such a right differs significantly right given as security and not as a result of
-5- the credit-right alone. exercised only against a person, the debtor, as opposed to a real right, which is exercised As shown, a real right may be granted against all. along with, or for the purpose of securing, a credit-right, in which case the real right is Modern doctrine has addressed vigorous accessory to the credit-right. Conversely, criticism against the differences just discussed however, a credit-right may arise because of and asserts that between real and personal the existence of a real right, as is the case with rights the difference is not one of nature, as the real right of usufruct, which may give rise both kinds of rights are component parts of to a credit right of the naked owner against the obligations, but lies only in the number of usufructuary for expenses of the former for passive subjects, namely obligors, at the other which the latter is responsible because of the end of the obligation giving rise to the rights usufruct he holds. of one or the other kind. Be that as it may, the traditional differences are analytically useful Because of those differences it is in order to enhance the distinct functions that commonly asserted that in an obligation the the legal system attaches to real and personal creditor enjoys a personal right, since it can be rights.
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