SALE AND LEASE (LCIV 725)  

AUTUMN 1999 B Prof. Gruning

 REPEALED SALES ARTICLES

Louisiana Civil Code of 1870: Book III, Title IV:  Of Sale (current as of 1991).  

These articles appear largely as they did in the Civil Code of 1870 and (apart from the article numbers) in the Civil Code of 1825.  As the 1995 revision of the law of sale is recent, it is useful to have the repealed articles in order to read the Louisiana jurisprudence in this area which naturally predates the sales revision and upon which the revision is often based.  [Ed.note.]

 

CHAPTER 1. OF THE NATURE AND FORM OF THE CONTRACT OF SALE

 

Art. 2438. Applicability of general rules of obligations

In all cases, where no special provision is made under the present title, the contract of sale is subjected to the general rules established under the title:  Of Conventional Obligations.

 

Art. 2439. Sale, definition

The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.

 Three circumstances concur to the perfection of the contract, to wit:  the thing sold, the price and the consent.

 

Art. 2440. Sale of immovable, methods of making

All sales of immovable property shall be made by authentic act or under private signature.

Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.

 

Art. 2441. Verbal sale of movable

The verbal sale of all movable effects, whatever may be their value, is valid;  but its testimonial proof must be made agreeably with what is directed in the title:  Of Conventional Obligations.

 

Art. 2442. Recordation of sale of immovable to affect third persons

The sale of any immovable made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered according to law, and the actual delivery of the thing sold took place.

But this defect of registering shall not be pleaded between the parties who shall have contracted in such act, their heirs or assigns, who are as effectually bound by a sale made under private signature, as if it were by an authentic act.

 

Art. 2443. Nullity of purchase of thing already owned

He who is already the owner of a thing, can not validly purchase it.  If he buys it through error, thinking it the property of another, the act is null, and the price must be restored to him.

 

CHAPTER 2. OF PERSONS CAPABLE OF BUYING AND SELLING

 

Art. 2445. Capacity to buy and sell

All persons may buy and sell, except those interdicted by law.

 

Art. 2446. Sales between husband and wife

A contract of sale, between husband and wife, can take place only in the three following cases:

1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.

2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.

3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.

Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.

 

OA 2446 Repealed by Acts 1978, No. 627, S 5, eff. Sept. 7, 1979;  Acts 1979, No. 709, S 2, eff. Jan. 1, 1980

 

Art. 2447. Sale of litigious rights

Public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, can not purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.

 

CHAPTER 3. OF THINGS WHICH MAY BE SOLD

 

Art. 2448. Things that may be sold

Any effects of commerce may be sold, when there exists no particular law to prohibit the traffic thereof.

 

Art. 2449. Corporeal and incorporeal things

 Not only corporeal objects, such as movables and immovables, live stock and produce, may be sold, but also incorporeal things, such as a debt, an inheritance, the rights, titles and interests to an inheritance or to any parts thereof, a servitude or any other rights.

 

Art. 2450. Sale of future things

A sale is sometimes made of a thing to come:  as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing.

 

Art. 2451. Sale of a hope

It also happens sometimes that an uncertain hope is sold;  as the fisher sells a haul of his net before he throws it;  and, although he should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught.

 

Art. 2452. Sale of thing belonging to another, nullity

 The sale of a thing belonging to another person is null;  it may give rise to damages, when the buyer knew not that the thing belonged to another person.

 

Art. 2453. Sale of thing pending litigation of ownership

 The thing claimed as the property of the claimant can not be alienated pending the action, so as to prejudice his right.  If judgment be rendered for him, the sale is considered as a sale of another's property, and does not prevent him from being put in possession by virtue of such judgment. Nor shall it be lawful for debtors or third possessors of property, subject to a mortgage of any kind, to transfer or alienate such property, pending an action to enforce the mortgage, and any transfer or alienation made in contravention of the provisions of this article, shall have no effect as against the plaintiff, or plaintiffs, in such pending action.

 

Art. 2454. Sale of succession of living person

The succession of a living person can not [sic] be sold.

 

Art. 2455. Total or partial destruction of thing at moment of sale

 If, at the moment of the sale, the thing sold is totally destroyed, the sale is null;  if there is only a part of the thing destroyed, the purchaser has the choice, either to abandon the sale, or to retain the preserved part, by having the price thereof determined by appraisement.

 

CHAPTER 4. HOW THE CONTRACT OF SALE IS TO BE PERFECTED

 

Art. 2456. Completion of contract by agreement as to object and price

 The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.

 

Art. 2457. Sales on condition or of alternative objects

The sale may be made purely and simply, or under a condition either suspensive or resolutive.  The object of the sale may also be two or more alternative things.

In all these cases, its effects are regulated by the principles laid down in the title:  Of Conventional Obligations.

 

Art. 2458. Sales by weight, count or measure

When goods, produce, or other objects, are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted or measured;  but the buyer may require either the delivery of them or damages, if there be any, in case of non‑execution of the contract.

 

Art. 2459. Lump sale

If, on the contrary, the goods, produce or other objects, have been sold in a lump, the sale is perfect, though these objects may not have been weighed, counted or measured.

 

Art. 2460. Sale with reservation of view and trial

Things, of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold, until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale.

 

Art. 2461. Tacit inclusion of accessories

The sale of a thing includes that of its accessories, and of whatever has been destined for its constant use, unless there be a reservation to the contrary.

 

Art. 2462. Specific performance of options and promises to sell

A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.

One may purchase the right, or option to accept or reject, within a stipulated time, an offer or pormise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon;  and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.

 

Art. 2463. Earnest money, effect

But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise;  to wit:  he who has given the earnest, by forfeiting it;  and he who has received it, by returning the double.

 

Art. 2464. Essential elements of price

The price of the sale must be certain, that is to say, fixed and determined by the parties.

It ought to consist of a sum of money, otherwise it would be considered as an exchange.

It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.

It ought not to be out of all proportion with the value of the thing;  for instance the sale of a plantation for a dollar could not be considered as a fair sale;  it would be considered as a donation disguised.

 

Art. 2465. Price left to arbitration by third person

The price, however, may be left to the arbitration of a third person;  but if such person can not, or be unwilling to make the estimation, there exists no sale.

 

Art. 2466. Costs of sale

The expenses of the act or other incidental cost of sale, are chargeable to the buyer, unless some agreement be made to the contrary.

 

CHAPTER 5. AT WHOSE RISK THE THING IS, AFTER THE SALE IS COMPLETED

 

Art. 2467. Risk after sale

As soon as the contract of sale is completed, the thing sold is at the risk of the buyer, but with the following modifications.

 

Art. 2468. Seller's duty of care pending delivery

Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator;  and if, through want of this care, the thing is destroyed, or its value diminished, the seller is responsible for the loss.

 

Art. 2469. Buyer's delay in taking possession, effect on seller's liability

The seller is released from this degree of care, when the buyer delays ontaining the possession;  but he is still liable for any injury which the thing sold may sustain, through gross neglect on his part.

 

Art. 2470. Seller's delay in making delivery, effect on liability

If it is the seller who delays to deliver the thing, and it be destroyed, even by a fortuitous event, it is he who sustains the loss, unless it appear certain that the fortuitous event would equally have occasioned the destruction of the thing in the buyer's possession, after delivery.

 

Art. 2471. Sale with suspensive condition;  changes in thing pending fulfillment of condition

A sale, made with a suspensive condition, does not transfer the property to the buyer, until the fulfillment of the condition.

If the thing be destroyed before this happens, the loss is sustained by the seller.

If the thing be only deteriorated, when the condition is accomplished, the buyer has the choice either to take it in the state in which it is, or to dissolve the contract.

If it has undergone any improvement without the agency of the seller, the buyer has the advantage of this improvement, without having to pay any increase of price.

 

Art. 2472. Alternative sale, loss of one or both objects

 In alternative sales, whether the choice be left to the seller, or be expressly granted to the buyer, the first of the two things which perishes after the contract, is a loss to the seller, and he must give up that which remains.  But if that which remains also perish, it is buyer's loss, and he must pay the price of it.

 

Art. 2473. Alternative sale at choice of buyer

In the case specified in the above article, when the choice is reserved to the buyer, he may recede from the contract, if one of the things has perished, provided he has not delayed to be put in possession.

 

CHAPTER 6. OF THE OBLIGATIONS OF THE SELLER

 

Art. 2474. Construction of ambiguities respecting obligations of seller

The seller is bound to explain himself clearly respecting the extent of his obligations:  any obscure or ambiguous clause is construed against him.

 

Art. 2475. Seller's obligations of delivery and warranty

The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.

 

Art. 2476. Warranty against eviction and against latent defects

The warranty respecting the seller has two objects;  the first is the buyer's peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.

 

SECTION 1. OF THE TRADITION OR DELIVERY OF THE THING SOLD

 

Art. 2477. Tradition or delivery, definition

The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer.

 

Art. 2478. Movables, methods of making delivery

The tradition or delivery of movable effects takes place either by their real tradition, or by the delivery of the keys of the buildings in which they are kept;  or, even by the bare consent of the parties, if the things can not be transported at the time of sale, or if the purchaser had them already in his possession under another title.

 

Art. 2479. Immovables, method of making delivery

The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property.  Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.

 

Art. 2480. Retention of possession by seller, presumption of simulation

In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.

 

Art. 2481. Incorporeals, method of making delivery

The tradition of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser, with the consent of the seller.

 

Art. 2482. Things not in possession of seller;  obligation to redeem and deliver

When the object sold is out of the vendor's possession, he must redeem it at his cost, and deliver it to the buyer, unless it be differently agreed between the parties, or unless it evidently appears from the contract, that the buyer himself has undertaken to reclaim it.

 

Art. 2483. Costs of delivery and of removal

The costs of delivery are chargeable to the seller, and those of removing are to be supported by the buyer, if there has been no stipulation made to the contrary.

 

Art. 2484. Place of delivery

The delivery must be made on the place where the thing, which is the object of the sale, was at the time of such sale, if not otherwise agreed upon.

 

Art. 2485. Buyer's rights upon default in delivery

If the seller fails to make the delivery at the time agreed on between the parties, the buyer will be at liberty to demand, either a canceling of the sale, or to be put into possession, if the delay is occasioned only by the deed of the seller.

 

Art. 2486. Damages for delay in delivery

In all cases, the seller is liable to damages, if there result any detriment to the buyer, occasioned by the non‑delivery at the time agreed on.

 

Art. 2487. Delivery excused until payment of cash price

The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment.

 

Art. 2488. Delivery excused by insolvency of buyer

Neither shall he be obliged to the delivery, even if he has granted a term for the payment, if since the sale the buyer is become a bankrupt, or is in a state of insolvency, so that the seller would be in imminent danger of losing the price of the same, unless the buyer should give him security to pay at the time agreed on.

 

Art. 2489. Condition of thing at time of delivery

The thing must be delivered in the same state in which it was at the time of the sale, that is to say, without any change occasioned by the act or fault of the seller.

From the day of sale all the profits belong to the purchaser.

 

Art. 2490. Delivery of accessories of thing sold

The obligation of delivering the thing includes the accessories and dependencies, without which it would be of no value or service, and likewise everything that has been designed to its perpetual use.

 

Art. 2491. Immovables, extent of delivery

The seller is bound to deliver the full extent of the premises, as specified in the contract, under the modifications hereafter expressed.

 

 Art. 2492. Sale of immovable by price per measure, delivery less than content stipulated

 If the sale of an immovable has been made with indication of the extent of the premises at the rate of so much per measure, the seller is obliged to deliver to the buyer, if he requires it, the quantity mentioned in the contract, and if he can not conveniently do it, or if the buyer does not require it, the seller is obliged to suffer a diminution proportionate to the price.

 

Art. 2493. Sale of immovable by price per measure, delivery in excess of content stipulated

 If, on the other hand, there exists an extent of more than what is specified in the contract, the buyer has a right, either to give the supplement of the price, or to recede from the contract, should the overplus be upwards of a twentieth part of the extent which is declared.

 

Art. 2494. Sale of specific immovable for lump sum, variance between delivery and content stipulated

In all other cases, whether the sale be of a certain and limited body, or of distinct and separate objects, whether it first set forth the measure, or the designation of the object, followed by its measure, the expression of the measure gives no room to any supplement of price, in favor of the seller, for the overplus of the measure;  neither can the purchaser claim a diminution of the price on a deficiency of the measure, unless the real measure comes short of that expressed in the contract, by one‑twentieth part, regard being had to the totality of the objects sold;  provided there be no stipulation to the contrary.

 

Art. 2495. Sale per aversionem by boundary descriptions, disparity in measure delivered

There can be neither increase nor diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary.

 

Art. 2496. Buyer's option to recede from contract or to supplement price

In the case where there is room for an augmentation of price for the surplus of the measure, the buyer has the option to give the supplement, or to recede from the contract.

 

Art. 2497. Restitution of price and expenses in case of rescission

In all cases where the buyer has a right to recede from the contract, the seller is bound to make him restitution not only of the price, if already received, but also of the expenses occasioned by the contract.

 

Art. 2498. Prescription of actions for supplement or diminution of price or for rescission

The action for supplement of the price on the part of the seller, and that for diminution of the price or for the canceling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred.

Art. 2499. Sale of two tracts of land, balancing of deficiency and surplus

If two pieces of ground have been sold by one and the same contract, with the expression of the measure for each, and there be found a less quantity in one, and a larger one in the other, the deficiency of the one is supplied by the overplus of the other, as far as it goes, and the action either in supplement or in abatement of the price, takes place only according to the rules above established.

 

SECTION 2. OF THE WARRANTY IN CASE OF EVICTION FROM THE THING SOLD

 

Art. 2500. Eviction, definition

Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.

 

Art. 2501. Implied warranty against eviction

Although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale.

 

Art. 2502. Scope of warranty;  eviction through negligence of buyer

That the warranty should have existence, it is necessary that the right of the person evicting shall have existed before the sale.  If, therefore, this right before the sale was only imperfect, and is afterwards perfected by the negligence of the buyer, he has no claim for warranty.

 

Art. 2503. Modification or exclusion of warranty;  buyer's subrogation to seller's warranty against others

The parties may, by particular agreement, add to the obligation of warranty, which results of right from the sale, or diminish its effect;  they may even agree that the seller shall not be subject to any warranty.

 

Art. 2504. Liability of seller for personal acts

Although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results from his personal act;  and any contrary agreement is void.

 

Art. 2505. Restitution of price in case of eviction, exception

Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.

 

Art. 2506. Rights of buyer against seller in case of eviction

When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller:

1. The restitution of the price.

2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.

3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.

4. The damages, when he has suffered any, besides the price that he has paid.

 

Art. 2507. Restitution of full price despite deterioration

When, at the time of the eviction, the thing sold has lost any of its value, or is considerably impaired, either through the neglect of the buyer, or by any providential acts or unforeseen accidents, the seller is still bound to the restitution of the full price.

 

Art. 2508. Deduction of damage when benefit to buyer

If, however, the thing sold was impaired by the buyer and he has reaped some benefit therefrom, the seller has a right to retain on the price, the amount to which such damages may be estimated in favor of the owner who evicts him.

 

Art. 2509. Reimbursement to buyer for useful improvements

The seller is bound to reimburse, or cause to be reimbursed, to the buyer, by the person who evicts him, all useful improvements made by him on the premises.

 

Art. 2510. Liability of seller in bad faith

If the seller, knowingly and dishonestly, has sold the property of another person, he shall be obliged to reimburse to the buyer all expenses, even of embellishments of luxury, that the buyer has been at improving the premises.

 

Art. 2511. Partial eviction, rights of buyer

If the buyer be evicted from a part only of the thing sold, and it be of such consequence relatively to the whole, that the buyer would not have purchased it without the part from which he is evicted, he may have the sale canceled.

 

Art. 2512. Warranty against eviction from proceeds

Not only eviction from part of the thing sold, but eviction from that which proceeds from it, is included in the warranty.

 

Art. 2513. Scope of warranty in sale of succession rights

But if the thing sold be succession rights, the eviction which the buyer might suffer from any particular thing found among the property of the succession, does not give rise to the warranty, because in this case the thing sold is only the succession right, which includes only such things as belong really to the succession.

 

Art. 2514. Partial eviction, proportionate restitution of price

If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.

 

Art. 2515. Warranty against undeclared non‑apparent servitudes

If the inheritance sold be incumbered with nonapparent servitudes, without any declaration having been made thereof, if the servitudes be of such importance that there is cause to presume that the buyer would not have contracted, if he had been aware of the incumbrance, he may claim the canceling of the contract, should he not prefer to have an indemnification.

 

Art. 2516. Damages from non‑execution of sale, rules governing

Other questions arising from a claim for damages, resulting from the non‑execution of the contract of sale, shall be decided by the general rules established under the title:  Of Conventional Obligations.

Art. 2517. Call in warranty

The purchaser threatened with eviction, who wishes to preserve his right of warranty against his vendor, should notify the latter in time of the interference which he has experienced.

This notification is usually given by calling in the vendor to defend the action which has been instituted against the purchaser.

 

Art. 2518. Failure of buyer to call seller in warranty, effect

In the absence of this notification, or if it has not been made within due time, that is, in time for the vendor to defend himself, the warranty is lost;  provided, however, that the vendor shall show that he possessed proofs, which would have occasioned the rejection of the demand, and which have not been employed, because he was not summoned in time.

 

Art. 2519. Buyer's suit to quiet possession, payment of costs

When the purchaser is himself obliged to commence judicial proceedings against a person disturbing his possession, he ought to notify his vendor of the action which he is commencing;  and the vendor, whether he undertake to conduct the suit for him or not, is obliged to indemnify him fully in case of condemnation.

 

             SECTION 3. OF THE VICES OF THE THING SOLD

 

'1. OF THE VICES OF THE THING SOLD, WHICH GIVE OCCASION FOR THE REDHIBITORY ACTION

 

Art. 2520. Redhibition, definition

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

 

Art. 2521. Apparent defects discoverable by buyer

Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.

 

Art. 2522. Latent defects made known to buyer

The buyer can not institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale.  Testimonial proof of this declaration may be received.

 

Art. 2523. Latent defects in inanimate things

With regard to inanimate things, the latent defects which give rise to the redhibitory action are in general all such as are comprised in the definition expressed at the commencement of this paragraph.

 

Art. 2524. Animals;  vices of body and vices of character

The latent defects of animals are divided into two classes:  vices of body, and vices of character.

 

Art. 2525. Absolute and relative vices of body

The vices of body are distinguished into absolute and relative.

Absolute vices are those of which the bare existence gives rise to the redhibitory action.

Relative vices are those which give rise to it only in proportion to the degree in which they disable the object sold.

 

Art. 2526. Absolute vices of horses and mules

 The absolute vices of horses and mules are short wind, glanders and founder.

 

Art. 2527. Other vices of body in animals

The other vices of body in animals are included in the definition given at the commencement of this paragraph.

 

Art. 2528. Vices of character in animals

The vices of character, which give rise to the redhibition of animals, are comprised in the definition given at the commencement of this paragraph.

 

Art. 2529. Seller's mistaken declaration as to quality of thing

A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.

 

Art. 2530. Proof of existence of vice before sale

The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him.  If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.

 

Art. 2531. Liability of seller in good faith for restitution of price

The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer‑seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.

 

Amended by Acts 1974, No. 673, S 1.  The prior text read:

 

Art. 2531.  The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.

 

Art. 2532. Loss of thing through badness of quality

If the thing affected with the vices has perished through the badness of its quality, the seller must sustain the loss.

 

Art. 2533. Loss of thing by fortuitous event

If it has perished by a fortuitous event, before the purchaser has instituted his redhibitory action, the loss must be borne by him.

            But if it has perished, even by a fortuitous event, since the commencement of the suit, it is for the seller to bear the loss.

 

Art. 2534. Prescription of redhibitory action;  exception and suspension

The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.

This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.

Nor where the seller, not being domiciliated [sic] in the State, shall have absented himself before the expiration of the year following the sale;  in which case the prescription remains suspended during his absence.

 

Art. 2535. Prescription of redhibitory action for animals

The redhibition of animals can only be sued for within two months immediately following the sale.

 

Art. 2536. Institution of action after loss of thing

The redhibitory action may be commenced after the loss of the object sold, if that loss was not occasioned by the fault of the purchaser.

 

Art. 2537. Judicial sales not subject to redhibition

Redhibition does not take place in the cases of the sales made under a seizure by order of a court of justice.

 

Art. 2538. Redhibitory action by heirs of purchaser

The redhibitory action is not divisible among the heirs of the purchaser;  that is to say, they must all concur in it, and no one of them can being it for his part only.

 

Art. 2539. Redhibitory action against heirs of seller

The redhibitory action may be brought against the heirs of the vendor collectively, or against one of them, at the choice of the purchaser.

 

Art. 2540. Redhibitory vice of one of several matched things sold together

The redhibitory vice of one of several things sold together, gives rise to the redhibition of all, if the things were matched;  as a pair of horses, or a yoke of oxen.

 

'2. OF THE VICES OF THE THING SOLD WHICH OCCASION A REDUCTION OF THE PRICE

 

Art. 2541. Reduction of price for vices warranting redhibition

Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.

 

Art. 2542. Reduction of price for defect in quality

The buyer may also content himself with resorting to this action, when the quality, which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition.

 

Art. 2543. Redhibition and reduction as alternative demands

The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action.

But in a redhibitory suit, the judge may decree merely a reduction of the price.

 

Art. 2544. Rules governing action for reduction of price

The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.

 

'3. OF THE VICES OF THE THINGS SOLD, WHICH THE SELLER HAS CONCEALED FROM THE BUYER

 

Art. 2545. Liability of seller for concealment of vice

The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys' fees, is answerable to the buyer in damages.

 

Amended by Acts 1968, No. 84, S 1.  Prior text read (in Codes of 1870 & 1825):

 

 Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.

 

Art. 2546. Prescription of redhibitory action when seller in bad faith

In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.

 This discovery is not to be presumed;  it must be proved by the seller.

 

Art. 2547. Fraud on the part of the seller;  rights of the buyer

A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title:  Of Conventional Obligations.

 It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys' fees, in favor of the buyer.

 

Amended by Acts 1968, No. 84, S 1.  Prior text read: 

 

Art. 2547. A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title:  Of Conventional Obligations.

                        It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and to damages in favor of the buyer.

 

Art. 2548. Effect of seller's fraud on buyer's renunciation of warranty

The renunciation of warranty, made by the buyer, is not obligatory, where there has been fraud on the part of the seller.

 

CHAPTER 7. OF THE OBLIGATIONS OF THE BUYER

 

Art. 2549. Obligations of buyer

The obligations of the buyer are:

            1. To pay the price of sale.

2. To receive delivery of the thing and to remove it, if it be an object which requires removal, and to indemnify the seller for what he has expended in preserving it for him.

 

Art. 2550. Time and place of payment of price

The price ought to be paid on the day and at the place mentioned in the sale.

If no stipulations have been made on that point, at the time of the sale, the buyer must pay at the time and at the place where the delivery is to be made.

 

Art. 2551. Suit for price after tender of delivery

On failure of the buyer to pay the price, the seller may compel him to do it, by offering to deliver the thing to him, if that has not been already done.

 

Art. 2552. Liability for price despite impossibility of delivery

If, after the contract, and before the seller has been required to deliver the thing, it ceases to be susceptible of delivery, without his fault, the buyer is still bound to pay him the price.

 

Art. 2553. Payment of interest on price

The buyer owes interest on the price of the sale, until the payment of the capital, in the three following cases:

1. If it has been so agreed at the time of the sale.

2. If the thing sold produces fruits, or any other income.

3. From the date of the sale when the price is then due.

 

Art. 2554. Time when interest begins

When the seller has granted to the buyer a term for payment, the interest begins to run from the end of that term except as provided by the Louisiana Consumer Credit Law.

 

Amended by Acts 1972, No. 454, S 8, eff. Jan. 1, 1973.  Prior text:

 

Art. 2554. When the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term.

 

Art. 2555. Liability of buyer failing to obtain delivery after default

The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for the damage which he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing.

 

Art. 2556. Seller's right to put out movables at risk of buyer

The seller may even obtain authority, where movables have been sold, and the custody of them is inconvenient to him, for putting them out of his house at the risk of the purchaser, on giving him notice of the day and hour at which he will put them out.

 

Art. 2557. Eviction or fear of eviction as ground for suspension of payment;  exception

If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price, until the seller has restored him to quiet possession or caused the disturbance to cease, unless the seller prefer to give security.

There is an exception to this rule, when the buyer has been informed, before the sale, of the danger of eviction.

 

Art. 2558. Deposit of price until determination of eviction suit

In the case mentioned in the preceding article, the seller who can not receive the price from being unable to give security, may compel the buyer to deposit the price, subject to the order of the court, to await the decision of the suit.

 

Art. 2559. Deposit of price at request of buyer

The purchaser may also require the deposit, to relieve himself from the payment of interest.

 

Art. 2560. Payment of price before disturbance of possession, effect

If the purchaser has paid before the disturbance of his possession, he can neither demand a restitution of the price, nor security during the suit.

 

Art. 2561. Dissolution of sale for non‑payment of price

If the buyer does not pay the price the seller may sue for the dissolution of the sale.  This right of dissolution shall be an accessory of the credit representing the price, and if it be held by more than one person all must join in the demand for dissolution;  but if any refuse, the others by paying the amount due the parties who refuse shall becomes subrogated to their rights.

 

Art. 2562. Summary dissolution of sale of immovables for non‑payment of price;  extension of time for payment

The dissolution of the sale of immovables is summarily awarded, when there is danger that the seller may lose the price and the thing itself.

If that danger does not exist, the judge may grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months.

This term being expired without the buyer's yet having paid, the judge shall cancel the sale.

 

Art. 2563. Payment of price after expiration of term but prior to default

If, at the time of the sale of immovables, it has been stipulated that, for want of payment of the price within the term agreed on, the sale should be of right dissolved, the buyer may nevertheless make payment after the expiration of the term, as long as he has not been placed in a state of default, by a judicial demand, but after that demand, the judge can grant him no delay.

 

Art. 2564. Dissolution of sale of movables for non‑payment of price

In matters of sale of movable effects, the dissolution of the sale shall take place of right, if demanded, without its being in the power of the judge to grant any delay, except that fixed by law.

 

Art. 2565. Buyer's liability to seller for diminution of value

If, on account of delay in the payment of the price, the seller is obliged to retain or to resume the thing sold, and its value is diminished, the buyer is bound to make good this diminution to the amount of the price which had been agreed upon.

 

CHAPTER 8. OF THE RESOLUTION AND OF THE RESCISSION OF THE SALE

 

             SECTION 1. OF THE POWER OR RIGHT OF REDEMPTION

 

Art. 2566. Resolution of sale by redemption or for lesion

Besides the causes of nullity or dissolution of the sale, already mentioned in this title, and those which are common to all agreements, the contract of sale may be canceled by the use of the power of redemption, and by the effect of the lesion beyond moiety.

 

Art. 2567. Right of redemption, definition

The right of redemption is an agreement or paction, by which the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it.

 

Art. 2568. Limited duration of right of redemption

The right of redemption can not be reserved for a time exceeding ten years.

If a term, exceeding that, has been stipulated in the agreement, it shall be reduced to the term of ten years.

 

Art. 2569. Non‑extension of stipulated time limit

The time fixed for the redemption must be rigorously adhered to;  it can not be prolonged by the judge.

 

Art. 2570. Effect of failure to exercise right within time stipulated

If that right has not been exercised within the time agreed on by the vendor, he can not exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold.

 

Art. 2571. Application of time limit against all persons including minors

The delay runs against any person, not excepting minors, who can not be relieved against it.

 

Art. 2572. Redemption against second purchaser

A person, having sold a thing with the power of redemption, may exercise the right against a second purchaser, even in case such right should not have been mentioned in the second sale.

 

Art. 2573. Right of buyer under right of redemption

The person, having purchased an estate under a condition of redemption, is entitled to all the rights possessed by the vendor;  he may prescribe against the true owner, as well as against those having claims or mortgages on the thing sold.

 

Art. 2574. Buyer's benefit of discussion against creditors of seller

He may oppose the plea of discussion to the creditors of his vendor.

 

Art. 2575. Ownership of fruits pending redemption

The fruits are his until the vendor exercises his right of redemption.

Art. 2576. Ownership of accessions pending redemption

He becomes absolute owner of the natural augmentations which the thing receives by accession, and is not bound to restore them.

But if these augmentations are of such a nature that they cannot be separated from the thing sold without injury to it, the person exercising the right of redemption, may insist that they shall be yielded to him for a fair price.

 

Art. 2577. Ownership of augmentations through efforts of buyer

With regard to the augmentations which the purchaser, under a condition of redemption, may have produced at his own expense, he has a right to an indemnity for them, as is hereafter stated or to take them away, if the removal can be effected in such a way that the thing sold shall be placed in its original condition.

 

Art. 2578. Liability for deterioration at time of redemption

The thing sold shall be restored to the seller who exercises the right of redemption, in the state in which it is at the moment.  If it has been deteriorated without the fault of the buyer, the loss must be borne by the seller;  nor can he, in this case, claim any reduction of the price to be reimbursed.  If it has been deteriorated by the fault or neglect of the buyer, though this be but slight, he must make good the loss to the seller.

 

Art. 2579. Buyer of undivided portion becoming owner of the whole, effect on seller's right to redeem

If the purchaser of an undivided portion of an estate sold with the power of redemption, has become the purchaser of the whole, at an auction ordered in a judicial proceeding against him, he may oblige the vendor to redeem the whole if the latter wishes to avail himself of the redemption.

 

Art. 2580. Divisibility of right of redemption among joint sellers

If several persons have jointly sold by a single contract a joint estate, each one of them can individually exercise the right of redemption for that share only which belonged to him.

 

Art. 2581. Divisibility of right of redemption among heirs of seller

The same principle governs when a person, having sold an estate, leaves several coheirs;  each of these coheirs can only exercise the right of redemption for the portion of the estate which falls to his share.

 

Art. 2582. Buyer's right to require joinder of vendors or heirs

But in the cases provided for in the two preceding articles, the purchaser may require, if he deem it proper, that all the covendors and coheirs may be made parties to the suit, for the purpose that they may agree together on the redemption of the whole estate;  and in case the covendors or coheirs should not agree, the purchaser shall be hence dismissed.

 

Art. 2583. Separate redemptions by individual sellers of respective portions of one whole estate

If an estate, belonging to several persons, has not been sold by them jointly, and if each coproprietor has only sold individually his share of that estate, they may separately exercise the right of redemption on the respective portions which belonged to each of them;  and in that case the purchaser can not compel him, who thus exercises the right of redemption, to redeem the whole estate.

 

Art. 2584. Redemption against heirs of purchaser

If the purchaser has left several heirs, the right of redemption can only be exercised against them individually, for the portion belonging to each of them respectively, whether the estate has already been divided between them or not.  But if a partition has already taken place, by which the thing subject to redemption has fallen to the share of only one of the coheirs, the action of redemption may be brought against this heir for the whole estate.

 

Art. 2585. Redemption not available to creditors of seller

The creditors of the vendor can not make use of the right of redemption, which such vendor may have reserved to himself.

 

Art. 2586. Ownership of ungathered fruits at time of redemption

When a vendor exercises the right of redemption, he becomes entitled to all the fruits not yet gathered, from the day in which he has either reimbursed or consigned the money paid by the purchaser, unless the contrary has been stipulated.

 

Art. 2587. Reimbursements to buyer on redemption

The vendor who exercises the right of redemption, is bound to reimburse to the purchaser, not only the purchase money, but also the expenses resulting from necessary repairs, those which have attended the sale, and the price of the improvements which have increased the value of the estate, up to that increased value.

 

Art. 2588. Mortgages or incumbrances created by buyer

When a vendor recovers the possession of his inheritance by virtue of the power of redemption, he recovers it free from any mortgages or incumbrances created by the purchaser, provided such possession be recovered within the ten years as provided by article 2568.  If after the expiration of these ten years, the vendor recover his estate with the consent of the purchaser, the estate remains liable for every mortgage and incumbrance laid upon it by the purchaser.

 

SECTION 2. OF THE RESCISSION OF SALES ON ACCOUNT OF LESION

 

Art. 2589. Rescission for lesion beyond moiety

If the vendor has been aggrieved for more than half the value of an immovable estate by him sold, he has the right to demand the rescission of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave to the purchaser the surplus of the thing's value.

 

Art. 2590. Time of valuation for determination of lesion

To ascertain whether there is a lesion beyond moiety, the immovable must be estimated according to the state in which it was, and the value which it had at the time of the sale, or at the time the option was granted if the sale be made pursuant to a valid contract of option.

 

Art. 2591. Option of buyer to restore property or to supplement price

If it should appear that the immovable estate has been sold for less than one‑half its just value, the purchaser may either restore the thing and take back the price which he has paid, or make up the just price and keep the thing.

 

Art. 2592. Fruits of property and interest on price

Should the purchaser prefer to keep the thing by making up the just price, he must pay the interest of the additional price from the day when the rescission was demanded.  If he chooses rather to restore the thing and to receive the purchase money, he shall be liable to restore the fruits of the estate from the day of the demand, but the interest of his money shall also be paid to him from the same time.

 

Art. 2593. Lesion

Lesion can be alleged only by the vendor in no other sale than one of corporeal immovables.

 

Art. 2594. Cases where rescission for lesion not available

Rescission for lesion beyond moiety is not granted against sales of movables and produce, nor when rights to a succession have been sold to a stranger, nor in matter of transfer of credits, nor against sales of immovable property made by virtue of any decree or process of a court of justice.

 

Art. 2595. Prescription of action for lesion

Actions for recission [rescission] of sales on account of lesion beyond moiety must be commenced within four years.  These four years, with respect to minors, begin only from the day they become of age.  With respect to persons of full age, they begin from the day of the sale.

 

Art. 2596. Running of prescription with delay for redemption

This delay runs with and is not suspended by that granted for redemption.

 

Art. 2597. Condition in which property restored to seller

The seller who demands the rescission on account of lesion beyond moiety, must resume the possession of the thing, in the state in which it is.

The buyer, in this case, is not bound for the injury sustained through his fault before the demand.  He is only bound to make reimbursement for such injuries as he has turned to his own profit.

 

Art. 2598. Reimbursement of buyer for improvements

The buyer is entitled to repayment for ameliorations which he has effected, although they be merely for pleasure and convenience.

 

Art. 2599. Buyer's right of retention pending reimbursement

He may remain in possession of the thing sold until the seller has restored the price which he paid, together with his expenses.

 

Art. 2600. Rules governing sales by co‑owners and rights of coheirs

The provisions contained in the preceding section relative to the case where several coproprietors have sold a thing, either jointly or separately, and to that where the vendor, or the buyer, has left several heirs, must likewise be applied to the exercise of the action of rescission for lesion beyond moiety.

 

CHAPTER 9.  OF SALES BY AUCTIONS, OR PUBLIC SALES

 

Art. 2601. Sale by auction, definition

The sale by auction is that which takes place when the thing is offered publicly to be sold to whoever will give the highest price.

 

CHAPTER 9.  OF SALES BY AUCTIONS, OR PUBLIC SALES

 

Art. 2602. Voluntary or forced sale

This sale is either voluntary or forced:  voluntary when the owner himself offers his property for sale in this manner;  forced, when the law prescribes this mode of sale for certain property, such as that of minors.

 

Art. 2603. Auction sale by officers of justice

The sale by auction, as it is made by officers of justice, is treated of separately, under the chapter on judicial sales.

 

Art. 2604. General rules governing sales by auction

The sale by auction, whether made at the will of the seller, or by direction of the law, is subjected to the rules hereafter mentioned.

 

Art. 2605. Sale through public officer

It can not be made directly by the seller himself, but must be made through the ministry of a public officer, appointed for that purpose.

 

Art. 2606. Announcement of conditions of sale and demand for bids

This officer, after having received in writing, from the seller, the conditions of the sale, must proclaim them, in a loud and audible voice, and afterwards propose that a bid shall be made for the property thus offered.

Art. 2607. Adjudication to highest bidder

When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who has made the offer is publicly declared to be the purchaser, and the thing sold is adjudicated to him.

 

Art. 2608. Adjudication as completion of sale

This adjudication is the completion of the sale;  the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.

 

Art. 2609. Payment of price before delivery

If the adjudication be made on condition that the price shall be paid in cash, the auctioneer may require the price immediately, before delivering possession of the thing sold.

 

Art. 2610. Sale of immovable, retention of price until execution of act

If the object adjudged is an immovable for which the law requires that the act of sale shall be passed in writing, the purchaser may retain the price, and the seller the possession of the thing, until the act be passed.

This act ought to be passed within twenty‑four hours after the adjudication, if one of the parties require it;  he who occasions a further delay is responsible to the other in damages.

 

Art. 2611. Resale for non‑compliance with bid;  adjudicatee's liability for deficiency

In all cases of sale by auction, whether or movables or immovables, if the person to whom adjudication is made, does not pay the price at the time required, agreeably to the two preceding articles, the seller at the end of ten days, and after the customary notices, may again expose to public sale the thing sold, as if the first adjudication had never been made;  and if at the second crying, the thing is adjudged for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor, for the deficiency and for all the expenses incurred subsequent to the first sale.  But if a higher price is offered for

the thing than that for which it was first adjudged, the first purchaser has no claim for the excess.

 

Art. 2612. Resale, bid by first adjudicatee prohibited

At this second crying, the first purchaser can not be allowed to bid, either directly or through the intervention of another person.

 

Art. 2613. Rejection of indorser of purchase price notes, effect on adjudication

When a thing is exposed to public sale, with notice that the buyer shall give indorsed notes for the price, he is bound, immediately after the sale, if required, to acquaint the auctioneer or the seller with the name of the person whom he offers for indorser, and if this indorser does not suit the seller, or in his absence the auctioneer, the adjudication is considered as not having been made.

 

Art. 2614. Liability of seller refusing to accept solvent indorser

The refusal by the seller to receive the indorser whom the purchaser offers, renders him responsible in damages to the latter, if it be proved that the indorser proposed is good and solvent.

 

Art. 2615. Liability for unauthorized bidding in name of another

The adjudication can only be made to a bidder present, or properly represented.  The person who bids in the name of another, without sufficient authority to bind him, is considered as having bought on his own account, and is answerable for all the consequences of the adjudication.

 

CHAPTER 10. OF JUDICIAL SALES

 

Art. 2616. Kinds of judicial sales

Sales which are made by authority of law are of two kinds:

1. Those which take place when the property of a debtor has been seized by order of a court, to be sold for the purpose of paying the creditor.

2. Those which are ordered in matters of succession or partition.

 

Art. 2617. General rules for judicial sales

Judicial sales are subject to the rules laid down above for public sales in general, in all such things as are not contrary to the formalities expressly prescribed for such sales, and with the modifications contained hereafter.

 

SECTION 1. OF SALES ON SEIZURE OR EXECUTION

 

Art. 2618. Execution sale, persons authorized to make

The sale on seizure is made at public auction by the sheriff or other officer charged with the execution of the judgment.

 

Art. 2619. Rescission for fraud or nullity;  redhibition not permitted

Whatever may be the vices of the thing sold on execution, they do not give rise to the redhibitory action;  but the sale may be set aside in the case of fraud, and declared null in cases of nullity.

 

Art. 2620. Rights acquired at execution sales

This sale on execution transfers the property of the thing to the purchaser as completely as if the owner had sold it himself;  but it transfers only the rights of the debtor such as they are.

 

Art. 2621. Rights of buyer in case of eviction

The purchaser evicted from property purchased under execution shall have his recourse for reimbursement against the debtor and creditor, as provided in Article 2379 of the Code of Civil Procedure.

 

SECTION 2. OF THE JUDICIAL SALE OF THE PROPERTY OF SUCCESSIONS

 

Art. 2622. Authority to order succession sale;  persons authorized to sell

The judicial sale of succession property is ordered by the judge of the court to which this jurisdiction is specially confided.

Representatives of successions shall have the right to cause sales of the property administered by them to be made either by the sheriff or an auctioneer, or to make it themselves, but in the event of making the sales themselves, they shall receive no commission therefor.

 

Art. 2623. Transfer of title

The adjudication made and recorded by the sheriff, auctioneer or representative of the succession, is a complete title to the purchaser, and needs not be followed by an act passed before a notary.

 

Art. 2624. Warranties

All the warranties to which private sales are subject exist against the heir in judicial sales of the property of successions.

 

Art. 2625. Purchase of property by heirs of succession

Heirs may purchase the property of the succession to the amount of their proportion, and are not obliged to pay the purchase money, until a liquidation is had, by which it is ascertained what balance there is in their favor or against them.

 

CHAPTER 11. OF THE COMPULSORY TRANSFER OF PROPERTY

 

Art. 2626. Expropriation, basis of right

The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.

 

Art. 2627. Taking property by authority of law

If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.

 

Art. 2628. Price to be paid

In all cases, a fair price should be given to the owner for the thing of which he is dispossessed.

 

Art. 2629. Payment of price before expropriation

This price ought to be paid to the owner before the expropriation, that is to say, before he has delivered the possession, or it has been finally taken from him, in case of resistance.

 

Art. 2630. Petition for expropriation by certain corporations;  prescription of claims for damages occasioned

Whenever any corporation, constituted under the laws of this State, for the construction of a railroad, plankroad, turnpike road, a canal for navigation, or for the purpose of transmitting intelligence by magnetic telegraph, can not agree with the owner of any land which may be wanted for its purchase, it shall be lawful for such corporation to apply to petition to the judge of the district court in which such land may be situated, or if it extends into two districts, to the judge of the district in which the owner thereof resides, and if the owner does not reside in either district, then to the judge of either district, describing the lands necessary for their  purposes, with a plan of the same, and a statement of the improvements thereon, if any, and the name of the owner thereof, if known and present in the State, with a prayer that the land be adjudged to such corporation upon the payment to the owner of all such damages as he may sustain in consequence of the expropriation of his land for such public work.  All claims for land, or damages to the owner caused by its expropriation for the construction of any public works, shall be barred by two years' prescription, which shall commence to run from the date at which the land was actually occupied and used for the construction of the works.

 

[This article, based on 1852 La. Acts, No. 119 '1, did not appear in the 1825 Code.  Ed.]

 

Art. 2631. Notice to owner, assessment of damages

On the presentation of such petition to the judge, it shall be his duty to indorse thereon an order directing the clerk of the court to give notice to the owner according to law.  The clerk shall thereupon issue a copy of the petition and order, together with a notice of the time at which a jury will be impanneled [impaneled] to assess the value of the land described in the petition, to the sheriff, who shall make service and return therefor as in ordinary cases.

 

Art. 2632. Impanelling of jury, procedures and verdict

Immediately after the order shall have been made by the Judge, it shall be the duty of the Clerk and Sheriff to make a list of fifty freeholders, residents of the parish in which the land lies, and not interested in the issue to be tried, from which list thirty‑six freeholders shall be drawn and summoned to attend on the day fixed in the order of court, provided that the summons shall be served on the freeholders not less than five calendar days, prior to the date fixed for attendance.  And from the thirty‑six freeholders so summoned, a jury of twelve shall be empaneled, which shall, by a verdict in which at least three‑fourths of their number shall concur, determine, after hearing the parties and their evidence, what is the value of the land described in the petition with its improvements, and what damages, if any, the owner would sustain, in addition to the loss of the land, by its expropriation.  If, for any reason, a jury cannot be empaneled from the thirty‑six freeholders whose names are drawn as above set forth, then, from the remaining fourteen freeholders, the court shall have the right to summon as many additional freeholders as the court may deem necessary to complete the empanelling of the jury.  In empanelling the jury, either party may challenge for cause and each party shall be entitled to the same number of peremptory challenges as is allowed by law in the trial of ordinary civil suits.

 

Art. 2633. Basis for determining property value

In estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.

 

Art. 2634. Appeal;  payment of award to owner or deposit in court as entitling plaintiff to property

No party to any expropriation proceeding shall be entitled to or granted a suspensive appeal from any order, judgment, or decree rendered in such proceeding, whether such order, judgment, or decree is on the merits, exceptions, or special pleas and defenses, or any or all of them.  The whole of the judgment, however, shall be subject to the decision of the appellate court on review under a devolutive appeal.

When a devolutive appeal is taken by either party, payment to the owner of the amount awarded by the trial court, or the deposit thereof in the registry of the court, entitles the plaintiff to the property described in the judgment in the same manner as would a voluntary conveyance.  If any change in the amount awarded is made on such appeal, the plaintiff shall pay the additional assessment or recover the surplus paid.

 

Art. 2635. Curator ad hoc for absent defendant;  price paid into registry of court

If the owner of any land required for works of public utility be unknown or absent, and have left no known agent in the State, or if he cannot be found and served after diligent effort though he may still reside within the State, it shall be the duty of the court to appoint a curator ad hoc to represent and act for such owner;  and the price which he may be entitled to receive shall be deposited into the court by which the expropriation is made, subject to his order;  the receipt of the Clerk of Court for the price shall vest the title in the person paying for the land, in the same manner as if it were paid to the owner in person.

 

Art. 2636. Rights of owner when excessive land demanded

If any owner shall be of opinion that the quantity of land sought to be purchased by any corporation exceeds that which is reasonably necessary for the purpose intended by the company, it shall be lawful for him to file a special plea, setting forth this fact, and in such case the court shall determine not only the value of the land to be expropriated, but also the extent of land over which the company may exercise the forced expropriation; the whole always subject to the decision of the court on appeal, which appeal, however, as provided by Article 2634, shall not suspend the execution of the judgment of the lower court.

 

Art. 2637. Property exempt from expropriation;  exceptions

The right of expropriation shall in no case extend to graveyards, nor the dwelling house, yard, garden, and other appurtenances thereof, unless the jury shall find, by their verdict, that the line of the proposed railroad or canal can not be diverted from that proposed by the company without great public loss or inconvenience.

 

Art. 2638. Cost of proceedings

If a tender be made by any corporation of the true value of the land to the owner thereof, before proceeding to a forced expropriation, the costs of such proceedings shall be paid by the owner.

 

Art. 2639. Effect of judgment

Judgments directing the expropriation of lands to corporations shall be valid against all persons, including minors or persons interdicted.

 

Art. 2640. Procedures mandatory

The proceedings set forth in the foregoing articles shall be required in all cases of expropriation of property necessary for the general use.

 

Art. 2641. Effect of expropriation on rights of third persons

If, after the expropriation, any individual pretends that he had rights respecting the thing, either as owner or as creditor, he shall have recourse against the person who received the price.

 

CHAPTER 12. OF THE ASSIGNMENT OR TRANSFER OF CREDITS AND OTHER INCORPOREAL RIGHTS

 

Art. 2642. Delivery as between parties

In the transfer of credits, rights or claims to a third person, the delivery takes place between the transferrer and the transferree by the giving of the title.

 

Art. 2643. Delivery as regards third persons, notice to debtor

A. The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.

B. The transferree may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act.  A partial transfer and assignment is effective as to the debtor without the necessity of giving notice thereof.

 

Amended by Acts 1984, No. 921, '1;  Acts 1985, No. 97, '1.  The 1984 change added second paragraph (designated as par. B pursuant to the statutory revision authority of the Louisiana State Law Institute), and made the former second paragraph the new third paragraph (designated as par. C pursuant to the statutory revision authority of the Louisiana State Law Institute).

 

The 1985 Amendment deleted the former par. B, which had read:

 

"B. The transferrer may assign less than the amount owed by the debtor, but in that case the debtor must notify the transferrer and the transferee of his consent to the partial assignment.  This requirement shall not apply to partial transfers between a transferrer and an affiliate of the transferrer as defined in R.S. 51:1500.1(1)."

 

The 1985 amendment also added the second sentence of the second paragraph  (previously par. C;  now designated as par. B).

 

The prior text read:

 

Art. 2643.  The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.

The transferree may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act.

 

Art. 2644. Payment by debtor prior to notice

If, previous to notice having been given of the transfer to the debtor, either by the transferrer or by the transferree, the debtor should have made payment to the transfer, the debtor is discharged of the debt.

 

Art. 2645. Accessories included in sale of credit

The sale or transfer of a credit includes every thing which is an accessory to the same;  as suretyship, privileges and mortgages.

 

Art. 2646. Warranty of existence of credit

He who sells a credit or an incorporeal right, warrants its existence at the time of the transfer though no warranty be mentioned in the deed.

 

Art. 2647. Solvency of debtor

The seller does not warrant the solvency of the debtor, unless he has agreed so to do.

 

Art. 2648. Scope of warranty as to debtor's solvency

When the solvency of a debtor is warranted by contract, such warrant extends only to the actual solvency of the debtor, and not to his future solvency, unless the same be expressly submitted to by the transferrer.

 

Art. 2649. Assignor's knowledge of debtor's insolvency, effect

If it be proved that the assigner, who has not warranted the solvency of the debtor, knew or had strong reasons to suspect that the debtor was insolvent at the time of the assignment, the contract may be rescinded, and the assigner compelled to restore the price.

 

Art. 2650. Warranty in assignment of succession rights

When a man sells his right to a succession, without particularly specifying the objects of which it consists, he only warrants his right as an heir.

 

Art. 2651. Liability of heir for fruits or credits received from succession

In case he who sells his right to a succession has already received any of the fruits of any property belonging to the same, and if any credit due to that succession has been paid to him, he shall be bound to repay the same to the purchaser, unless the same has been excepted by the contract.

 

Art. 2652. Sale of litigious rights

He against whom a litigious right has been transferred, may get himself released by paying to the transferree the real price of the transfer, together with the interest from its date.

 

Art. 2653. Litigious right, definition

A right is said to be litigious, whenever there exists a suit and contestation on the same.

 

Art. 2654. Exceptions to application of Article 2652

The provisions of article 2652 do not apply:

1. When the transfer has been made either to a coheir or to the coproprietor of the right.

2. When such right has been transferred to a creditor as a payment for a debt due to him.

3. When the transfer has been made to the possessor of the estate subject to the litigious right.

 

CHAPTER 13. OF THE GIVING IN PAYMENT

 

Art. 2655. Giving in payment, definition

The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.

 

Art. 2656. Delivery essential to a giving in payment