The Uses of Analogia Iuris in the Louisiana Code of Practice (1825)*
Shael Herman**
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I.
Introduction
As jurists in the only American state with a Romanesque civil code, Louisiana lawyers have
contended for over two centuries with an intellectual loneliness verging occasionally on
solipsism.1 While lawyers from the other forty nine states feast on a bountiful harvest of
scholarly works published by national publishing houses, we dine mainly on locally grown
output about the civil law. By cutting us off from many of the intellectual wellsprings of our
private law, widespread ignorance of the mother languages of the civil law (i.e., Latin, Italian,
French, Spanish, German, and Dutch,) has deepened our isolation. Louisiana lawyers’ daily
reading of our codes has suffered from insufficient understanding of statutory interpretive
methods that have been the stock in trade of civilians and canon lawyers. The third in a series
of papers on Louisiana’s early codes, this study expands our knowledge of statutory
.
John Minor Wisdom Professor Emeritus, Tulane Law School; Visiting Professor, University of Paris II
(Pantheon Assas). This paper completes an EJCL trilogy on the Louisiana Code of Practice (1825) by Shael
Herman. It first appeared in 23 Tulane European and Civil Law Forum 51 (2008). The first two instalments
appeared in EJCL issue 12.1 (http://www.ejcl.org/121/papers121.html).
1
Owing partly to the uniqueness of our mixed legal system within the United States, our loneliness is
temporarily relieved by exchanges with other mixed and civil law systems. On the virtues and drawbacks of
Louisiana’s unique legal system, see generally Shael Herman, Louisiana: One Off Among Fifty States, in The
Influence of the French Civil Code on the Common Law and Beyond 115 (D. Fairgreave ed., 2007); Shael
Herman, Epistle to Catalonia: Romance and Rentabilidad in an Anglophone Mixed Jurisdiction, in Regional
Private Laws and Codification in Europe 221 (H MacQueen, A Vaquer, & S E. Espiau eds, 2003) translated in
Epistola a Cataluna: Romance y Rentabilidad en un Ordenamiento Mixto Anglofono, La Notaria (Brcelona)
Tomo 1, Numeros 11-12 at 41 (2001). One tacks against the wind if he tries to explain to American lawyers the
French and Spanish influences upon our law, for the American polity seems to suffer from an allergy, indeeda
phobia, toward international law and multinational organizations. I know of no other enlightened legal system in
which justices of the highest national court, seemingly in the grip of nativist urges, inveigh against fellow
justices for occasionally informing their opinions with references to foreign law. These critics seem oblivious to
the fact that American law, predictably for a relatively young nation of settlers from distant lands, is to a
considerable extent an alloy of foreign legal influences. Their contempt for fellow judges who favor reference to
foreign law is reason enough to wonder where American law is now going. See generally David M O’Brien,
More Smoke Than Fire: The Rehnquist Court’s Use of Comparative Judicial Opinions and Law in the
Construction of Constitutional Rights, 22 J Law & Politics 83 (2006).
**
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interpretation by reflecting upon a heuristic device that the early Louisiana law drafters,
Edward Livingston, Louis Moreau-Lislet and Pierre Derbigny, built into the Louisiana Civil
Code and the Code of Practice of 1825. I argue here that the three drafters yoked these codes
together by means of both a common terminology and a methodological commitment to
purposive interpretation animated by a venerable technique, analogia iuris.
In an earlier essay,2 I argued that the three law commissioners sought to confer equal
rank upon the two codes. Indeed, an early Louisiana enactment had even assigned the Code of
Practice priority over the Civil Code in case of conflict between the two codes.3 The priority
rule might seem a counterintuitive inversion to a civil lawyer, for he would locate the Civil
Code at the apex of a hierarchy of legal sources, and a procedural code several rungs below
the Civil Code. The priority rule may be understood, however, against the backdrop of
Louisiana’s unusual legal evolution. During the eighteenth century, Louisiana was a civil law
stronghold under French and then Spanish rule. Early in the nineteenth century, the Louisiana
Purchase caused the territory’s legal shift to a mixed jurisdiction in an early stage of gestation.
Thanks to political pressures from President Thomas Jefferson; his hand picked governor,
W.C.C. Claiborne, and his judicial appointees from other states, a burgeoning American
common law posed a growing challenge to the civil law tradition. If, in 1803, the Louisiana
Purchase had not implicitly imposed American legal norms on Louisiana inhabitants, then a
declaration by Louisiana lawmakers indicated that the norms were generally received by
1806. In that year, a Louisiana legislative manifesto acknowledged the preeminence of
national laws. Yet it also insisted upon continuation of the territory’s civil laws compatible
with national laws.4
To the three law commissioners, the priority rule was emblematic of an enduring
dilemma. On one hand, it consisted of preserving the state’s civil law in accordance with the
consensus of the local populace while, on the other hand, conforming the civil law to common
law norms that animated United States jurisprudence. To manage the dilemma (it has never
been resolved), the drafters satisfied local lawyers by enshrining in the Code of Practice of
1825 a number of civilian institutions. To the probable delight of lawyers arriving from other
states, the drafters also “constitutionalized” the Code of Practice by incorporating into it
extensive regulation of American constitutional norms such as habeas corpus, the prerogative
writs, jury trials, and an adversarial process.5
2
The Louisiana Code of Practice (1825): A Civilian Essai Among Anglo American Sources(Part I) The
Electronic Journal of Comparative Law Jurist; Part II (hereinafter cited as Essai).
3
“In case the [. . .] Code of Practice should contain any provisions contrary or repugnant to those of the Civil
Code, the latter shall be considered as virtually repealed or thereby amended in that respect.” La. Acts 1824,
Section 10 (April 12th, 1824).
4
“Since we have the power to keep our old laws insofar as they do not conflict with the Constitution of the
United States and the special acts passed for our provisional government, no one can deny the advantage to us of
remaining under a system to which we are accustomed and which has nothing contrary to the affection which we
owe to our government.” Le Telegraphe, June 3rd, 1806, reprinted in 9 THE TERRITORIAL PAPERS OF THE UNITED
STATES 643-57 (C. E. Carter ed., 1940).
5
For an account of the integration of these institutions and doctrines into Louisiana civil procedure, see
generally Essai, Parts I and II, supra note 2.
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An exercise in accommodating the rival traditions, “constitutionalizing” the Code of
Practice seemed to have two purposes, one internal to Louisiana’s legal system and the other
external to it. In terms of external effects, the process rendered the procedural character of
Louisiana law recognizable to lawyers in other states and institutions of the national
government. Such recognition required Louisiana courts to conduct trials and give judgments
that formally followed American patterns and could pass constitutional muster although the
disputes in the courts were animated by civilian doctrine. In terms of internal effects, a
process of constitutionalizing the Code of Practice gave newly arriving lawyers signposts in a
topography dominated by unfamiliar civilian norms and concepts. Although the provenance
of the Civil Code was almost entirely civilian, that of the Code of Practice derived from a fair
balance of civilian and common law institutions and practices. By providing a field in which
the rival traditions met and accommodated one another, the Code of Practice offered an
unusual window into the legislative processes that yielded the mixed legal system.
II.
The Heuristic Value of Analogical Interpretation
The law commissioners’ report on their work suggested their intention to link substantive
rights and duties embodied in the Civil Code with enforcement mechanisms in the Code of
Practice: 6
We have thought it our first duty to comprise in the several Codes we deem
necessary for stating and defining the rights of individuals in their personal
relations to each other [. . .] preserving and transferring property and rights
[Author’s note: i.e., in a civil code] and for seeking civil redress for any injury
offered to either. These rules will form the civil and commercial codes, and the
System of Judicial Procedure which we are directed to furnish for your
consideration.
Although the commissioners’ method could have been spelled out more crisply, their
goal seems clearly to have been to link the two codes together. The links were too numerous
and clear to be chalked up to coincidence. When a substantive rule or concept in the Civil
Code was sounded, then a procedural rule or concept in the Code of Practice would resonate
for local lawyers and prompt them to reflect upon key mechanisms in the latter. Ubi ius (in
the Civil Code) ibi remedium (in the Code of Practice).By yoking the codes together, the
drafters displayed remarkable prescience. They seem to have realized that local civilians, even
though deprived of a procedural safety net, might still comfortably navigate the Civil Code’s
abstract formulations of rights and duties. But from the time of the Louisiana Purchase, a
swelling number of common lawyers likely would have welcomed a procedural context for
unfamiliar substantive rules and concepts translated from Latin, Spanish, and French sources.
6
Edward Livingston, et al Preliminary Report of the Code Commissioners (February 13th, 1823), reprinted in 1
LA LEGAL ARCHIVES lxxxix (1937) (hereinafter cited as Commissioners’ Report).
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For the Louisiana Civil Code alone, analogia iuris was an indispensable instrument of
interpretation. An elegant method whose name betrayed its origins in ancient Greek
philosophy and Latin rhetoric,7 analogical interpretation was a main instrument by which
Romanists extended their legal texts in both time and space.8 Across Europe, medieval
churchmen, the principal transmitters of a legal culture indebted to both classical learning and
Christian theology, relied upon analogical interpretation to enlarge the scope of legal rules
they had inherited from the Roman jurists. Gradually the churchmen tempered and
harmonized the rules into a ius commune that would displace disparate customary laws
prevailing in the most remote corners of Christendom.
By projecting the rules in time, analogical interpretation also enabled medieval
lawyers to save them from ossifying or collapsing under the pressure of unanticipated
historical circumstances. Embraced by the formalistic école de l’exégèse, the analogical
method permitted French revolutionary jurists during the early 1800s to discover the inner
policies and organic interactions of their civil code rules. In France their juristic method came
to be associated with the famous maxim, “par le code mais au-delà du code.”9 As Thomas
Aquinas had drawn analogies between the human intellect and divine omniscience, French
jurists drew an analogy between the minds of their code drafters and the mind of God. “Who
has the place of God on earth?” Napoleon rhetorically asked. Answer: “The legislator”, by
which Napoleon meant himself. In his self aggrandizement, Napoleon followed Justinian,
who had a millennium earlier legitimated his compilation on the basis that its author was an
emperor who was both Christian and Roman.
7
The most ancient form of analogy seems to have been the statement of geometric ratios or mathematical
proportions (A:B=C:D). For lawyers, analogy is an indispensable tool for identifying continuities in time and
space. It lies at the base of the lawyer’s quest for symmetry, order, and legislative coherence. Applied to
legislative texts, analogia iuris has usually been designated by a subspecies, analogia legis. But here I have used
the broader, more familiar term analogia iuris to describe analogical interpretation because our analysis
navigates among constitutions, legislation, judicial decisions, doctrine, and editorial comments. On the roots of
the interpretive techniques in Roman law and Greek rhetoric, see Shael Herman, The Equity of the Statute and
Ratio Scripta: Legislative Interpretation Among Legislative Agnostics and True Believers, 69 TUL. L. REV. 535
(1994). (cited hereinafter as Equity of the Statute); PETER STEIN, REGULAE IURIS 131-132 (1961).
8
On the role of analogy in interpretation of civilian legislation, see Shael Herman, Under My Wings Everything
Prospers: Reflections Upon Vernon Palmer’s The Louisiana Civilian Experience—Critiques of Codification in a
Mixed Jurisdiction, 80 Tulane L Rev 1491, (2006); Shael Herman, The Equity of the Statute, supra note 7, 548549. During the middle ages, analogical interpretation was also important for the methods of Jewish and
Christian scholars who sought to uncover and harmonize the meanings of the Bible and authoritative texts. Id. at
note 61.
9
R. Saleilles, Préface, in F. GENY, METHODE D’INTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF, essai
critique xiii (1899) (cited hereinafter as Gény). The lesson to be drawn from Saleilles’s aphorism was that the
meanings of the French Civil Code were not frozen at the time of enactment in 1804. In other words, in terms
familiar in United States Supreme Court jurisprudence, textual originalism would have been inappropriate for
interpreting either the French civil code or its Louisiana counterpart. On the contrary, Saleilles urged interpreters
of the French Civil Code to take into account social and economic evolution occurring since the time of the
code’s adoption. On the evolution of interpretive methods in French law, see generally C. Jamin, Saleilles’ &
Lambert’s Old Dream Revisited, 50 AM. J. COMP. L.701 (2002).
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Around 1900, François Gény made the analogical method a foundation stone for his
celebrated libre recherche scientifique.10 Originating in classical Rome and later taking root in
the Holy Roman Empire, these civilian developments coalesced in Europe’s legal thought.
They endured in Article 17 of the Louisiana Civil Code of 182511 which enshrined the
principle of analogical interpretation.
Laws in pari materiae, or upon the same subject matter, must be construed
with a reference to each other; what is clear in one statute may be called in aid
to explain what is doubtful in another.
If interpretation in pari materiae resulted in legislative ambiguity, then CC (Civil Code)
article 18 instructed the court to inquire into the purpose of the law in question:
The most universal and effectual way of discovering the true meaning of a law,
when its expressions are dubious, is by considering the reason and spirit of it
or the cause which induced the Legislature to enact it.
French doctrine in time embraced the analogical methods embodied in the Louisiana
Civil Code. It could not have been otherwise, for without analogical interpretation, the codes
would not have endured. If the Louisiana Purchase had not occurred, then Louisiana’s legal
evolution might have followed that of France or another French territory. Perhaps the unique
blend of French and Spanish laws, unaffected by the common law, would have yielded a
system unlike any we know today. But these things we shall never know. We do know that
the Purchase and the territory’s consequent mixed character challenged the commissioners to
exercise fully their powers of improvisation. They deployed techniques of analogia iuris
beyond the Civil Code, (au- delà du Code) into a procedural realm dictated by the
Constitution and American legal norms. The Code of Practice elaborated several hundred
articles that would reinforce cognate Civil Code articles and in turn be reinforced by them.
When analogical interpretation of the two codes sometimes spent itself in simple
reinforcement of the rules, this was nonetheless an estimable advantage for local lawyers in
search of pathways through an unfamiliar legal thicket.12 As early judicial opinions attested,
analogical interpretation went beyond reinforcing the rules, enabling regulation in one code
subtly to color cognate regulation in the other.13 To borrow Portalis’s famous phrase, each
10
Gény, supra note 13. This work, in a translation by J. Mayda, was published by the Louisiana State Law
Institute as Method of Interpretation and Sources of Private Positive Law (1963).
11
CIVIL CODE OF THE STATE OF LOUISIANA, 1825 (ed. Morgan 1853).
12
For the law commissioners’ view of the confusing character of territorial law, see generally Commissioners’
Report Lxxxv-lxxxix.
13
For judicial examples of this phenomenon, see Seixas v Citizens Bank, 38 La Ann 424 (financial failure or
insolvency explained in light of CP art 165 and CC art 3027); Soulie v Soulie, 5 La 26, 1832 WL 947 (role of
curator of absentee explained in light of cognate provisions of Code of Practice and Civil Code); Allison v
Maroun, 193 La 286, 190 So 408 (interpreting the meaning of possess in light of CP article 47 and CC art 3454);
Jennison v Warmack, 5 La 493, 1833 WL 2645, (analogical reading of CC and CP); Vance v Lafferanderie, 4
Rob. 340, 1843 WL 1392 (1843) (in accordance with the priority rule, supra note 7, CC article 1987 was
substantially modified by CP article 647). Parker v Starkweather, 7 Mart n s 337; 1825 WL 1644 (analogical
interpretation of seizure regulation in both Civil Code and Code of Practice); Hallock v Caruthers, 5 Rob 190;
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code made the other more fécond en conséquences (fertile in effects) than it would have been
if read alone.14 Following a scholastic method that beamed the light of the Old Testament and
the New Testament upon one other, each code constituted a catechism or user’s guide for the
other code’s gospel.15
III.
Sounding a Theme in the Civil Code: Obligation with Performance Subject to a
Term (CC articles 2043, 2048, and 2052)
Our study illustrates the interdependence of the codes at the level of single words (i.e., term),
simple phrases (natural obligations), and finally entire titles (judicial remedies). In the first
two examples, the links between the codes are implied; in the last illustration, the links are
explicit. To demonstrate the interdependence of the two codes in a readily understandable
context, we first focus upon “term”, a word understood differently by common law doctrinal
writers and their civilian counterparts. In the language of common law contracts, the word
term refers loosely to a clause, a provision, a condition, or a stipulation in an agreement.16
Civilian doctrine has assigned “term” a more technical meaning than common law doctrine.
Indispensable for a credit economy dependent upon executory contracts payable in
installments, “term” refers to a period granted an obligor for performance. According to CC
article 2043, “the time given or limited for the performance of an obligation is called its
term.”17 By locating a provision on “term” in a chapter titled “Of the Different Kinds of
Obligations”, the drafters made clear that “term” applied broadly to a range of obligations,
1843 WL 1522 (interpreting Civil Code and Code of Practice in pari materia on proper service of
interrogatories).
14
“Féconds en conséquence” was Portalis’s picturesque shorthand for the analogical power of sound code
provisions. For Portalis’s preliminary discourse on the French Civil Code, see Alain Levasseur, Code Napoleon
or Code Portalis?, 43 TUL. L. REV. 762 (1969).
15
Because indoctrinating an uneducated flock required moral object lessons, this catechistic function played an
important role in interpreting the Old and the New Testaments. According to Christian theologians who sought
to establish the parity of the New Testament with the Old Testament, the latter prophesied events and figures in
the former. For example, the Gospels depicted Jesus (Old Testament: Joshua) as the new Adam. In some
instances, figures who shared a proper name performed similar acts having implications for their salvation. For
example, the names Judah and Judas derived from the Hebrew Yehudah. In the Old Testament Judah sinned by
suggesting the sale of Joseph into bondage. In the New Testament, a central example of sinful conduct concerned
Judas’s acceptance of money to betray Jesus.
16
In recognition of the mixed character of the state’s law, Louisiana courts from an early date also routinely
attributed to term this common law meaning. See, e.g., Municipality No 2 v Hennen, 14 La 559, 1840 WL 1096,
Johnson v Quarles, 3 La. 90, 1831 WL 682. Because “term” could be ambiguous, a body of scholarship has
developed to explain its technical meanings. See, e.g., SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 6.1.
17
The Code of Practice and parts of the Civil Code of 1825 were republished in the Louisiana Legal Archives
(1937), but the articles therein were either inconsistently numbered or not numbered at all. In this essay, code
numbers correspond to those of the Civil Code of 1825, (ed. Morgan; 1853), cited note 11 supra; and Fuqua’s
edition of the Code of Practice). Hereafter a reference to an article of the Civil Code of 1825 is abbreviated as
“CC article -------.”A reference to the Code of Practice is abbreviated as “CP article ______”. “Current article”
refers to the legislation in force on the date of publication of this paper. So, for example, to demonstrate the
continuity of a particular idea from the earlier civil code to the current civil code, this essay reports that “the
principle of CC article 2043 (1825) is now elaborated in current CC article 1778.”
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however they might arise. “Term” might designate a specified period in almost any document
or transaction;18 it could exist by virtue of a statute or a judicial order.
Relying upon the concept of “term”, CC article 2052 announced a limit on an
obligor’s duty to perform:
Where a term is given or limited for the performance of an obligation, the
obligor has until sunset of the last day limited for its performance, to comply
with his obligation, unless the subject of the contract cannot be done after
certain hours of that day.
By locating CC article 2052 in a title “Of the Nature and Division of Obligations”, the
law commissioners extended the article’s scope beyond duties ex contractu to the other
categories of duties (ex delicto, quasi ex contractu, quasi ex delicto). The Civil Code
articulated several corollaries whose goal was to balance the considerable rewards of credit
arrangements against a creditor’s risk that his debtor, despite his best efforts, might be unable
to fulfill his obligations on an agreed date. Many of these corollaries have endured in the
revision of the obligations articles for which Professor Litvinoff was the reporter. First, the
term of an obligation operated for the obligor’s advantage; in the language of CC article 2048,
“the term is always presumed to be stipulated in favour of the debtor”.19 But the debtor could
lose the advantage if he became unable to render his performance or voluntarily renounced his
duty.20 Second, good faith bound the obligor not to prejudice his undertaking by voluntarily
18
For example, CC article 603 (1825) stipulated that a usufruct could begin or end upon arrival of a term or a
condition. “If the title of the usufruct has limited the right to it to commence or determine (Author: i.e.,
terminate) at a certain time, or in the event of a certain condition, the right does not commence or determine, till
the condition happens or the time elapses.” As CC Article 603 indicated, a term, like a condition, could be either
suspensive or resolutory. For the creation and extinction of a usufruct upon a term or a condition, see now
current CC article 610. The concept of “term” could also affect a buyer’s duty to pay interest on a price: “When
the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term.”
CC article 2532 (1825). For other applications of “term” in the context of buyer’s duties, see CC articles 254041.
19
Thus, a vendor could not put his purchaser in mora or default before the arrival of a specified term. Nettles v
Scott, 17 La 336, 1841 WL 1291. The principle of CC 2048 was recast in a common sense formulation in current
CC article 1779 which provides: “A term is presumed to benefit the obligor unless the agreement or the
circumstances show that it was intended to benefit the obligee or both parties.” If a term under the new articles
did not perforce benefit the obligor exclusively, then the obligor alone could not renounce the benefit. Current
CC article 1780 addresses the obligor’s renunciation when he is the exclusive beneficiary of the term. (“The
party for whose exclusive benefit a term has been established may renounce it.”) Comments to the new article
make it clear that its formulation benefited from both the Quebec Draft Civil Code (1977), a precursor of the
new Quebec Civil Code, and the Israeli Contracts Law article 42.
20
This principle generalizes ideas made explicit in other Civil Code articles regulating term. For example, CC
article 2049: “Wherever there is a cession of property, either voluntary or forced, all debts due by the insolvent
shall be deemed due, although contracted to be paid at a term not yet arrived. . .” Millaudon v Foucher, 8 La.
582, 1835 WL 708 (“[. . .] article 2049 [. . .] requires not merely an actual insolvency or inability to pay debts,
but a surrender of property either voluntary or forced, for the common benefit of creditors. The general rule is
that what is due by contract at a particular time cannot be demanded before expiration of the intermediate time.”)
CC article 2050: “If a debt be contracted to be paid at a term, and security be given for the payment, if, from
whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obligation is
due, exact either that good security be given, or that the debt be immediately paid.” See now current CC articles
1782 and 1783. These two articles envisioned two separate hypotheses that depended upon the obligor’s
becoming insolvent. Current CC article 1782 makes clear that some performances, especially those of an entirely
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rendering himself unable to fulfill it. Third, if an obligor had until the last day of the term to
perform, then a creditor could not demand performance from the obligor until the arrival of
the last day. This last principle had practical implications for the formulation of actions and
exceptions under the Code of Practice.
IV.
Resonating in the Code of Practice (CP articles 14, 15, 16, 330, and 332), the
Concept of Term Highlights Links with Cause of Action, Right of Action, and
Exceptions
Having sketched key features of “term” in the Civil Code, we next seek resonances of the
theme in the Code of Practice. For example, CP article 14, appearing in a title “Rules
Applicable to All Civil Actions”, provided:
Every obligation gives impliedly a right of action to enforce its execution; but
the obligation and the right of action do not always arise at the same time.
Thus in contracts to be performed at a future period, the obligation which
grows out of the contract, arises at the very moment of making it, but the right
of action growing out of it, arises only when the stipulated term has arrived.
[Italics added]
Rich in practical instruction about civil actions, CP article 14 linked the “term” for
performance of an obligation to a venerable distinction between “cause of action,” and “right
of action” both primordial enforcement mechanisms crucial in judicial procedure.
Comparable to intérêt à agir (interest to act) in French procedure, “cause of action” was
suggested by the familiar aphorism in French procedure pas d’intérêt, pas d’action (no
interest, no action). The French phrase most nearly approximates the facet of procedural
standing called by proceduralists “injury in fact.” CP article 15 elaborated this French
aphorism in different terms: “An action can only be brought by one having a real and actual
interest which he pursues, but as soon as that interest arise (sic), he may bring his action.”
CP article 14 highlighted an implication of the civil code regulation of “term” and
particularized it for the category of contracts. Although an obligation arose upon conclusion
of a contract, the enforceability of duties embodied in the contract could be postponed until
arrival of the term. The second sentence of CP article 14 linked a substantive principle
enshrined in CC article 2052 (i.e., Rights and duties arise upon a contract’s conclusion)—with
a procedural principle (enforceability of contractual rights may be postponed until arrival of a
term). This illustration of the operation of a substantive rule in a procedural context likely was
designed to help early Louisiana lawyers cut pathways through unfamiliar terrain.
personal character, do not require an obligor’s solvency. The obligor should lose the benefit of the term only
when he has become insolvent and his performance requires his solvency. Article 1782 thus provides: “When the
obligation is such that its performance requires the solvency of the obligor, the term is regarded as nonexistent if
the obligor is found to be insolvent.” Assuming the common situation that the obligor’s performance depends
upon his solvency, and he has promised security for his performance, then he may lose the benefit of the term
unless he furnishes sufficient security. See now current CC article 1783.
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Echoing a principle embodied in CC article 2052, CP article 16 justified the
postponement of an enforcement action until the expiration of the last day stipulated for
fulfillment of the obligation: “In all actions which are to be brought at the end of a stated
period, the right of action subsists until the last day has expired.”
Litigators should especially admire the way in which the law commissioners pressed
CP article 16 beyond the substantive definition of “term” and toward defenses by means of
exceptions. Legacies of classical Roman procedure, exceptions, like modern demurrers and
motions to dismiss, have long been deft organizers of a civil proceeding. An exception brings
into focus the order in which issues should be decided. If material facts are not contested
before the trial court, then an exceptor-defendant can often short-circuit a suit by interposing a
defense either to defeat the suit altogether (peremptory) or delay its progress (dilatory). 21 For
example, an action for enforcement of an obligation subject to a term, if filed before the last
day granted for performance, may be dismissed on an exception of prematurity.
CP article 330 sketched the defensive character of exceptions by announcing that
“exceptions are [. . .] used by the defendant to retard, prevent, or defeat the demand brought
against him.” Closely related to the regulation of term, CP article 332 defined the role of the
dilatory exception in characterizing the claimant’s demand as premature. “Dilatory exceptions
[. . .] do not tend to defeat the action, but only to retard its progress.”
V.
Sounding the Theme of Natural Obligations in the Civil Code (CC 1749, 1750,
1751, and 1752)
Understanding the interdependence of the codes through their combined regulation of natural
obligations requires us to thread a pathway through a number of different contexts in which
such obligations are regulated. Physically remote from one another, the contexts seem
unrelated. Analogical interpretation seems to generate a centrifugal force that scatters
leitmotifs associated with natural obligations (e.g., error of law, cause, unjust enrichment).
Seemingly inconsistent rules on the actionability of natural obligations compound the
difficulty of figuring them out. The regulation is a puzzle in the sense that it recognizes
natural obligations as binding in some circumstances, but not other similar ones. The precise
circumstances for enforcement of a natural obligation can elude us, especially because
Louisiana jurisprudence has long recognized natural obligations in many different situations.22
A comprehensive vision of natural obligations emerges as we trace several leitmotifs
through the codes. The code contexts for natural obligations include [i] the Civil Code’s
definition of natural obligation, where it is located in a hierarchy of categories of obligations
(CC articles 1749-1752); [ii] the Civil Code’s regulation of error of law, where a natural
obligation may block an obligor’s recovery of a payment or performance that he could have
legitimately reclaimed otherwise (CC article 1840); [iii] the Civil Code’s regulation of unjust
enrichment (CC 2280-2285), which barred a debtor’s recovery of a payment for which he was
not civilly liable because it recognized a natural obligation; [iv] the Code of Practice rules that
21
22
On the dilatory exception, see generally 1 LOUISIANA CIVIL LAW TREATISE section 6.6.
See, generally, SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Chapter II, Sections 2.1 – 2.45 (2001).
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authorize no action to enforce the obligation, and yet bar recovery of what has been paid…
(CP articles 9, 17, and 18). [v] A fifth context for natural obligations consisted of editorial
comments in the Civil Code that viewed natural obligations in light of the common law idea
of consideration and the civilian idea of cause.
VI.
Centripetal Force Generated by Civil Code Article 1752
CC article 1752 seems to generate a centripetal force that counteracts the centrifugal force of
analogical interpretation observed in our account of natural obligations.23 This article
simplified analysis by inviting us to view all natural obligations either retrospectively or
prospectively, whatever the circumstances in which they arise. The article classified the
universe of natural obligations by asking whether the obligation in question was asserted (i) as
a defense by a recipient of a payment against an obligor’s suit for reimbursement or (ii) by an
obligor when his creditor demanded of him a payment promised in the future.
VII.
Descending from General Principles to Particular Applications (CC articles 17491752)
Like authors of many classics inspired by the logical rigor of the enlightenment,24 the drafters
of the Civil Code organized its regulation of obligations in a hierarchy descending from
general principles to particular instances. According to Professor Litvinoff, a civilian
contemplates obligation as an abstraction, a formal scheme that can be applied to, or
abstracted from, an infinite number of concrete situations.25 The Civil Code regulation of
obligations began with a general theme, “the nature and division of obligations.”
CC Art 1749: An obligation is, in its general and most extensive sense,
synonymous with duty.
CC article 1750 subdivided obligations into three categories – civil, natural, and
imperfect or moral – according to their enforceability by judicial demand. It may seem odd
that the drafters regulated imperfect obligations as if they were non-obligations, but, provided
the drafters’ reasons were understood, this was indeed the case. According to CC article 1750,
imperfect obligations “created no right of action, nor are they entitled to any legal
recognition.”
23
For the principle of CC article 1752 (1825), see now, current CC article 1761.
For example, this hierarchy may be found in René Descartes, Meditations and Baruch Spinoza, Ethics. Among
jurists, see J DOMAT, LES LOIX CIVILES DANS LEUR ORDRE NATUREL, which made a deep imprint upon both the
French Civil Code and its Louisiana counterpart. Descent from general to specific is clear in particular in
Montesquieu’s THE SPIRIT OF LAWS, which opens with Book I, Of Laws in General and then is subdivided into,
among other themes, the laws of nature, and the positive laws.
25
See SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.9 (2001).
24
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A comparative law context will clarify the drafters’ reasons for including
unenforceable “imperfect” obligations in the taxonomy of obligations. As the drafters hinted,
civilians and common lawyers had different understandings of “imperfect” obligations; for
the latter, they were enforceable; for the former they were not. These differing views
prompted the drafters to assure that their tripartite classification scheme did not compound
misunderstandings about imperfect and natural obligations. Their comments represented a
pragmatic foray into comparative law.
According to a comment inserted into Article 1750 of the projet of the Civil Code,
English doctrine deemed “natural affection” a moral or imperfect obligation that could
constitute a valid consideration for a conveyance. Perhaps English lawyers needed “natural
affection” to justify a conveyance because their doctrine lacked a comprehensive regulation
of gifts like that found in the Civil Code.
If, as the drafters seem to have realized, Louisiana law had followed English doctrine
on natural affection as consideration for a conveyance, then it would have been nonsensical
for the Civil Code to have shorn an imperfect obligation of all legal effect.26 The most
reasonable interpretation of CC article 1750 was that an imperfect obligation had no effect
within the civil code scheme of obligations. In supporting this interpretation, the drafters’
comments showed that the integrity of Louisiana law required attention to differences
between the civil law and English doctrine on imperfect obligations: 27
Although this kind of obligation [imperfect, moral] has no legal effect
whatever [Author’s note: i.e., in the civil code], its definition is introduced
because it is frequently referred to by commentators and sometime with such
loose expressions, as might induce a belief that it had the effect of a natural
obligation, unless the contrary were declared. In the common law of England,
“natural affection” which is an imperfect obligation, is a good consideration
for a conveyance. As we do not mean to sanction this principle, it was the
more necessary to declare it [the difference between English and Louisiana
law] because of the danger of introducing from the jurisprudence of our sister
states principles inconsistent with that of our own.
26
See now comment C under current CC article 1760.
Taking the drafters of the Civil Code of 1825 at their word, the 1984 revision of the obligations articles
justifiably eliminated imperfect obligations from the universe of obligations set forth in CC article 1750 of the
Civil Code of 1825. If, as the earlier code had announced, imperfect obligations had no legal effect, then there
was no reason to retain them. Comment C, Current CC article 1760. The law commissioners’ editorial remarks
indicated their strategy for including imperfect obligations in the Civil Code, although they acknowledged that
these obligations had no legal effects within the Civil Code. By illuminating links between consideration and
natural affection, the commissioners’ remarks demonstrated their awareness of consideration doctrine prevailing
in England and other states and their intention that Louisiana law on cause should evolve in a different direction
than consideration. From the time of the Louisiana Purchase, common lawyers who streamed into Louisiana
naturally would have wondered about the validity of imperfect obligations. Completeness required inclusion of
imperfect obligations even though pedagogical comments were required to dispel confusion on the part of the
lawyers and courts. By 1984, Louisiana law had outgrown the need for imperfect obligations, and they were
suppressed.
27
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VIII. The Conditional Enforceability of Natural Obligations (CC article 1750, CC
article 1890)
CC article 1750 next addressed “natural” obligations; depending upon specific situations,
these might be enforceable or unenforceable. The conditional enforceability of natural
obligations justified their location upon an intermediate rung between civil obligations and
imperfect obligations. CC article 1750 [2]:
A natural obligation is one which cannot be enforced by action [author’s
brackets: e.g., like the imperfect obligation] but which is binding on the party
who makes it in conscience and according to natural justice [author’s brackets:
e.g., unlike an imperfect obligation, but like a civil one]
CC article 1751 next posited four categories of natural obligations:
1. Such obligations as the law has rendered invalid for the want of certain
forms or for some reason of general policy, but which are not in themselves
immoral or unjust.
2. Such as are made by persons having the discretion necessary to enable them
to contract, but who are yet rendered incapable of doing so by some provision
of law.
3. When the action is barred by prescription, a natural obligation still subsists,
although the civil obligation is extinguished.
4. There is also a natural obligation on those who inherit an estate, either under
a will or by legal inheritance, to execute the donations or other dispositions,
which the former owner had made, but which are defective for want of form
only.
For the moment we leave aside the question whether the list in CC article 1751 was
exhaustive or illustrative; the answer (illustrative) emerges later when the two codes’
regulations of natural obligations are read in pari materiae.28
28
From an early date, the Louisiana Supreme Court seems to have assumed the illustrative character of the list in
CC article 1751. Alternatively, perhaps the justices believed that a liberal interpretation of the Civil Code would
permit the subsumption of a great number of different obligations under the rubric “natural obligations.” See,
e.g., Hills v Kernion, 7 Rob. La. 522, (plaintiffs paid official tobacco inspectors for their additional services
though they realized that the extra payments were not legally required. Plaintiffs were denied recovery of the
payments because they were deemed to have been made in recognition of a natural obligation. Reliance upon an
analogy between CP 18 and CC 2281). The illustrative nature of the listing of natural obligations is apparent now
in current CC article 1762 (“Examples of circumstances giving rise to a natural obligation are [. . .]”) According
to current CC article 1762, comment b, the first sentence of this Article purports to solve a controversy well
known in continental doctrine and Louisiana jurisprudence, that is, [whether the list contained in the prior civil
code articles] was intended to be exclusive or merely illustrative. However, the comments under current CC
article 1762 do not mention the regulation of natural obligations in the Code of Practice; that code made it
reasonably clear that the listing was always intended as illustrative.
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It is difficult to put order into a comprehensive collection of natural obligations,
whether already identified or yet to be identified. CC article 1752 provided an organizing
principle upon which the collection could be organized. That article instructed us to ignore for
the moment the specific circumstances in which natural obligations might arise, and to focus
instead on the fact that any natural obligation produced two effects, the first retrospective and
the second prospective. The first addressed payments already made by the obligor. The
second addressed an obligor’s promise to make a future payment:
1. No suit will lie to recover what has been paid, or given in compliance with a
natural obligation.
2. A natural obligation is a sufficient consideration for a new contract.
Like a previously quoted comment under CC article 1750, CC article 1890, which
appeared in a chapter titled “Of the Cause or Consideration of Contracts,”29 equated “motive”
or “consideration” with “cause”:
By the cause of the contract, in this section, is meant, the consideration or
motive [French: cause suffisante] for making it, and a contract is said to be
without a cause, whenever the party was in an error, supposing that which was
his inducement for contracting to exist, when in fact it had never existed, or
had ceased to exist before the contract was made.
Combining the principles of CC articles 1752 and 1890, an unenforceable obligation,
if it fell within the category of natural obligations for a particular reason such as prescription,
could constitute a valid cause for a fully enforceable obligation to pay in the future. But to
insulate an obligor against his impulsive action, enforceability was made to depend upon his
making a new promise to pay in recognition of this natural obligation.30
29
Going back several centuries in English law, a researcher would discover that consideration was an analogue
of cause in canon law doctrine and that these bases of enforcement were associated in English jurisprudence. A
W B Simpson, Innovation in Nineteenth Century Contract Law, 91 LQR 247, 258. By the time the Louisiana
commissioners tackled their drafting assignment, however, the term “consideration” had acquired the objective
and formalistic meanings their comments assigned it. It would consequently no longer have been appropriate to
couple a civilian concept of cause with the Anglo American understanding of consideration. This contrast
between cause and consideration illustrates nicely my earlier remark that the discourse of Louisiana lawyers
depended decisively upon a civilian lexicon while the form of many transactions might depend equally
decisively upon the lexicon of American commerce. Indeed, “cause” can figure in the form of transactions as
importantly as “consideration”. Though new code articles might today clearly separate the concepts of cause and
consideration, the discourse of Louisiana commercial lawyers pressed on all sides by colleagues elsewhere in the
United States, scrambled them back together again. See generally Shael Herman, Detrimental Reliance in
Louisiana Law---Past, Present, (and Future?) The Code Drafter’s Perspective, 58 TUL. L. REV. 707 (1984).
30
This is the formulation in the current obligations articles. See now current CC article 1761
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IX.
Natural Obligations: Civil Code Regulation of Error of Law (CC article 1840)
The accuracy of the preceding analysis of natural obligations may be checked by entering the
Civil Code through another channel. Starting anew with the regulation of obligations in
general, we pass to vices of consent (e.g., error, fraud, duress, threats). To a general statement
about error and cause,31 as evoked in CC article 1890, CC article 1840, appearing in the
regulation of “vices of consent”, added restrictions and modifications that could weaken the
invalidating force of error of law in a rescission action. CC article 1840 provided:
Error in law, [. . .] invalidates a contract, where such error is its only or
principal cause, subject to the following modifications and restrictions:
1. Although the party may have been ignorant of his right, yet if the contract
made, under such error, fulfilled any such natural obligation as might from its
nature induce a presumption that it was made in consequence of the obligation
and not from error of right [law] then such error shall not be alleged to avoid
the contract. Thus, the natural obligation to perform the will of the donor,
prevents the donee from reclaiming legacies or gifts he has paid under a
testament void only for want of form. [Author’s note: evoking example
number 4 in CC article 1751]
6. If a party has an exception that destroys the natural as well as the perfect
obligation, and, through error of law makes a promise or contract that destroys
such exception, he may avail himself of such error; but if the exception
destroys only the perfect, but not the natural obligation, error of law shall not
avail to restore the exception.
[Italics added]
Echoing CC article 1890, the drafters’ comment beneath CC article 1840 linked the
themes of cause and error of law:
As there has [sic] been much diversity of opinion and many contradictory
decisions on the effect which errors in law ought to have upon contracts we
have thought it proper to offer some positive enactments on the subject [. . .] If
an opinion of my right [l’opinion que j’ai de mon droit]
is the sole cause
of my agreement and that opinion is false, there is then no cause, no more than
there would be if the error bore on a substantial fact, which was the cause of
the contract. [Italics added]
For the link between error and cause in the current Civil Code, see now article 1950 “Error may concern a
cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality
of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the
parties regarded, or should in good faith have regarded, as a cause of the obligation.”
31
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X.
Unjust Enrichment: A New Ingredient in Analysis of Natural Obligations
By relying upon natural obligations to blunt the invalidating force of error of law, the Civil
Code cast doubt on whether a debtor could reclaim from a recipient what he had paid or
delivered in error. The doubt cannot be dispelled if our analysis remains within the confines
of CC article 1840. Interpretation in pari materiae justifies our reference to the Civil Code
regulation of quasi-contracts. Isolated from other articles in the title “Payment of a Thing Not
Due” CC article 2280 authorized a debtor to reclaim what he had paid in error: “He who has
paid through mistake, believing himself a debtor, may reclaim what he has paid.” Reinforced
by CC article 2280, CC article 2282 echoed the themes of CC article 1840 and CC article
1890 by linking error with cause: “A thing not due is that which is paid on the supposition of
an obligation which did not exist, or from which a person has been released.”
Interpretation in pari materiae requires us to return to CC article 1752, for besides
producing an organizing principle noted previously, the article qualified the quasi-contractual
rule announced in CC article 2280:
CC Article 1752[1]: No suit will lie to recover what has been paid, or given in
compliance with a natural obligation.
The Civil Code did not assign priority to either CC article 1752 or CC article
2282. Assuming the civil code’s organic coherence, then CC article 17
encouraged harmonization of the articles whenever possible. Supposing that a
debtor could not have been sued for performance of the obligation, then once
he had paid, could he recover the payment? Neighboring articles regulating
quasi-contracts should dispel our confusion. As in the regulation of “term,” the
exception as a means of defense had an important role in describing the
debtor’s legal posture: According to CC article 2281: “To acquire this right
[the right to reclaim the payment], it is necessary that the thing paid be not due
in any manner, either civilly or naturally. A natural obligation to pay will be
sufficient to prevent the recovery.”
CC article 2285 provided:
But this exception [that would block the plaintiff’s claim] must be such that it
shall extinguish even all natural obligation. Thus he who, having the power to
plead prescription, shall have made payment, cannot claim restitution.
Visualizing the border between recoverable and unrecoverable payments depends
upon grasping the difference between natural obligations and civil obligations, a theme
introduced at the beginning of our analysis of natural obligations. By invoking the exception,
CC article 2284 foreshadowed the regulation of natural obligations in the Code of Practice:
The payment from which we might have been relieved by an exception that
would extinguish the debt, affords ground for claiming restitution. [Italics
added]
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Although CC article 2284 did not describe in detail the kind of exception required
to extinguish a debt, it confirmed the possibility of such relief (a peremptory exception
would be the preferred defense.) Consistently with CC article 1840, CC article 2285
amplified the nature of the exception by declaring that it “must be such that it shall
extinguish even all natural obligation” (author’s note: in addition to civil obligation).32
XI.
Prescription and Natural Obligations
Before exploring the Code of Practice for its resonances with the Civil Code regulation of
natural obligations, let us double back to CC article 1751 to reinforce the link between
prescription and natural obligations mentioned in CC article 2285: CC article 1751 [3]
provided: “When the action is barred by prescription, a natural obligation still subsists,
although the civil obligation is extinguished.”
The first seven words of CC article 1751(3) supposed that the obligation in question
would otherwise be fully enforceable if the prescriptive period had not run. Let us return to
CC article 1840 [error of law] for it too illuminated the procedural role of the exception based
upon prescription:
5. A promise or contract, that destroys a prescriptive right, shall not be avoided
by an allegation that the party was ignorant or in an error with regard to the
law of prescription;
6. If a party has an exception, that destroys the natural as well as the perfect
obligation, and, through error of law, makes a promise or contract that destroys
such exception, he may avail himself of such error; but if the exception
destroys only the perfect, but not the natural obligation, error of law shall not
avail to restore the exception. [Italics added]
As our reading of CC article 1840 shows, analogical interpretation permits reading a
code on different levels and projecting the code’s meanings in numerous and sometimes
unexpected directions. We made this point earlier in describing the centrifugal character of
analogy. Besides linking cause with error and natural obligation, CC article 1840 reinforced
links between the Civil Code regulation of prescription and the Code of Practice regulation of
exceptions.
32
For current regulation of unjust enrichment, see now CC articles 2298 to 2314 (i.e., Book III, Title V, Chapter
2 of Enrichment Without Cause).
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XII.
The Code of Practice Regulates Obligations in Terms of Actions and Exceptions
(CP articles 9, 16, 17, and 18)
As kindred texts originating from a single team of drafters, the two codes amplified each
other. Interpretation in pari materiae enables us to discover their common design. The Code
of Practice presupposed the Civil Code’s regulation of natural obligations. Without an
analysis of the Civil Code’s regulation of natural obligations, the counterpart regulation of the
subject in the Code of Practice would be unhelpful. For its part, the Civil Code regulation of
natural obligations presupposed the Code of Practice’s procedural apparatus of actions and
exceptions. A debtor’s counsel would be functioning in a vacuum if he were unaware of
offensive tactics whereby an obligee enforced a duty and defensive tactics urged by an obligor
to defend his position. In the Civil Code, however, the interplay between actions and
exceptions was incidental to the regulation of natural obligations which stood in the
foreground. By contrast, in the Code of Practice, actions and exceptions stood in the
foreground while natural obligations were introduced incidentally to illustrate the operation of
actions and exceptions.
CP article 9 linked the definition of civil obligation in CC article 1749 with the idea of
civil action: “A civil action is one which is brought for private interest, such as a suit to obtain
the payment of a sum due, the restitution of property, or reparation for an injury done by
words or action.” CP article 20 illuminated the offensive/defensive relationship between a
right of action and a corresponding exception: “He who has a right of action to claim what is
due to him has a right yet more evident to use the same cause of action as an exception, in
order to preserve his rights.”
Having laid the groundwork of actions and exceptions, CP article 17 then evoked by
analogy the concept of natural obligation first encountered in CC article 1752[1]: “Natural
obligations give no right of action, but what has been paid pursuant to those obligations is not
subject to repetition” (i.e., restitution).33
XIII. CP Article 17: An Index of Illustrative Character of List in CC Article 1751
Earlier we noted that the Civil Code of 1825 did not state clearly whether the list of natural
obligations in CC article 1751 was illustrative or exclusive. Read in isolation, the list in CC
article 1751 seems exclusive (“natural obligations are of four kinds”). Unlike CC article 1751,
however, CP article 17 equivocated on the number of natural obligations. Indeed, the phrasing
of the French version of CP article 17 signaled that the list was illustrative. “On appelle
obligations naturelles, celles pour lesquelles la loi n’accorde point d’action; telles sont celles.
. . [such as those]”. More explicit than the English version of CP article 17, the French
locution (“those are natural obligations, for which the law gives no right of action; they arise
on contracts entered into by persons who”) suggests the possibility of identifying new natural
33
See Hill v Kernion, 7 Rob. 522, 1844 WL 1465 (relying upon analogy between CC article 2281 and CP article
18 (16) to deny recovery of payment determined to have been made in recognition of natural obligation).
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obligations in the fullness of time. By the mid 1850s, Louisiana courts were well on the road
to identifying new natural obligations. With the help of CP article 17, the Louisiana legal
community might have been spared long debates on whether the original list of natural
obligations in the Civil Code was exclusive or illustrative. In 1985, a new code article on
natural obligations finally put the issue to rest by declaring the list in CC article 1751
illustrative.34
Promoting analogical interpretation of the two codes, CP article 18 confirmed a link
between natural obligations and payment in error that the Civil Code had introduced: “He
who pays through error, what he does not owe, has an action for the repetition of what he has
thus paid, unless there was a natural obligation to make such payment[.]” CP article 18 also
added a rule on burden of proof: “but he must prove that he paid through error, otherwise it
shall be presumed that he intended to give.”
CP article 18 implied that a transferor’s recovery of a payment made in error required
his act to have been prompted by a sense of duty or onerous cause.35 Otherwise, his act was
presumed a liberality motivated by a gratuitous cause (animus donandi). Until this point, our
survey of natural obligations has not discussed donations. By referring to this category of
gratuitous contracts, however, the Code of Practice amplifies our understanding of contrasts
between cause and consideration. A donation is a contract like any other in the sense that it
requires consent of the parties, their contractual capacity, a lawful object, and a lawful cause.
Unlike an onerous contract, however, a donation is a unilateral contract animated by a
gratuitous cause; this contrast explains how an obligor may become obligated without
receiving a return benefit. By invoking the Civil Code regulation of donations, CP article 18
recalled the difference between gratuitous cause and onerous cause. One who transferred a
payment to another person may have acted out of a valid gratuitous cause and expected no
return benefit for his gesture. To recover the payment the obligor had to prove that “he [. . .]
paid through mistake, believing himself a debtor,” [CC article 2280] and that the mistaken
payment was prompted by an onerous cause. If the obligor could not bear the burden of
proving his error, then he would be presumed to have made a valid donation to someone who
was the object of his generosity. In this last case, the transferor of the payment was not a
debtor and the recipient of the payment was not his creditor.36
34
See now current CC article 1762.
Current CC article 1761 captured the policy expressed in CP article 18. CC article 1761 provides: “A natural
obligation is not enforceable by judicial action. Nevertheless, whatever has been freely performed in compliance
with a natural obligation may not be reclaimed. A contract made for the performance of a natural obligation is
onerous.”
36
The current Civil Code articles reinforce this theme. According to comment B, current CC article 1762, the
present formulation of article 1762 “is intended to enhance the usefulness of the concept of natural obligation in
distinguishing between mere generosity, which constitutes a gratuitous cause, and obedience to a moral duty,
which may determine the cause as onerous.” West L S A CC article 1762, annotated. To the same effect, see also
comment D, current CC article 1761.
35
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XIV. Specific Performance: Explicit Overlap Between the Codes
Until this point, the code links that we have identified have been established by implication.
In the first example, these links were suggested by repetition of a single word (e.g., “term”);
in the second example, by phrases (e.g., natural obligations). Sometimes, however, the
drafters expressly forged links between the codes. We shall explore examples of these explicit
links in the Civil Code regulation of remedies, in which the reader was directly guided to the
regulation of judicial practice in the Code of Practice.
XV.
Ambiguities on Standards for Specific Performance
Unfortunately, the regulation of remedies in both codes contained ambiguities that bred
judicial confusion; and this confusion has lingered nearly two centuries after their adoption.37
Evidencing the hazards of invention in a mixed jurisdiction, these remedial ambiguities seem
emblematic of contrasting civilian and common law conceptions of judicial discretion. Even if
the initial regulation of remedies had been completely consistent, the courts over decades
would likely have faced interpretive problems when the two codes were no longer yoked
together. Dating from 1808, the regulation of remedies in the Civil Code endured in
recognizable form until the obligations revision of 1984-85. By contrast, the state legislature
over many decades modified the Code of Practice, and in 1960, replaced it with the Code of
Civil Procedure. This new code continued much of the procedural terminology that originated
the Code of Practice of 1825. But the Code of Civil Procedure also reflected the rising
national influence of the federal rules of civil procedure. By contrast, the Civil Code never felt
a thorough national impact from a unitary body of substantive rules. Though the Louisiana
drafters watched carefully legal developments under the Uniform Commercial Code, its scope
is much narrower than that of the Civil Code, and its influences upon the Civil Code have
been episodic and relatively slight.38
XVI. Compulsory Execution in the Codes of 1825
Blending civilian and common law terminology, the codes’ combined regulation of specific
performance generally projected a policy of compulsory execution that we would recognize
today. Following a traditional English distinction between ordinary and extraordinary relief,
some provisions in each of the codes couched the preferred remedy in terms of whether a
monetary award could repair a claimant’s injury.39 If the monetary remedy sufficed to repair
37
For discussion of the misunderstandings in light of doctrine, see Weingarten v North Gate Mall 404 So 2d 896
(1981).
38
For the influences of the UCC upon the Louisiana Civil Code, see generally, Shael Herman, E Pluribus Unum:
The Paradox that Safeguards Louisiana’s Mixed System, 78 TULANE. L. REV. 457 (2003).
39
Although Louisiana has never had a court of equity or chancery modeled upon the English courts, the
Louisiana Supreme Court was from an early date conversant with equitable doctrines of performance that had
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the harm, then specific performance was denied; if monetary relief was insufficient, then the
remedy was granted. But the codes’ regulation of remedies did not consistently follow the
English distinction. Sharply limiting the judicial discretion familiar in English law, some code
articles shifted toward a familiar civilian analysis that afforded a breach victim rather than a
judge discretion to elect a remedy. These articles were based upon traditional civilian
distinctions between obligations to give, to do, and not to do.
XVII. Civil Code Preference for Performance to Enforce Obligations to Give
Under the Civil Code of 1825, an inquiry into the proper remedy for breach of contract would
have begun by locating the obligation in question within a tripartite classification of
obligations derived from the Romanist tradition.40 These categories appeared under two Civil
Code subchapters: “Of Obligations of Giving” and “Of Obligations to Do and Not to Do”.
Obligations to give and not to do were normally enforceable by compulsory execution, while
a breach of an obligation to do was remedied by a damage award. In operation, the lines
separating the three categories of obligations were sometimes unclear, and their tripartite
classification scheme sometimes might seem artificial. For example, according to the Civil
Code of 1825, delivery of a promissory note already endorsed or payable to the bearer was
enforceable by specific execution because it fulfilled an obligation to give.41 By contrast, the
transfer of a note payable to order and not endorsed, or any other debt requiring an act of
transfer, constituted an obligation to do. Its breach was remedied by damages, not
compulsion. The contrasting remedial treatment is explained in terms of a civilian doctrine
that has traditionally insisted that a debtor may not be compelled to perform an act that would
intrude upon his personal freedom.42
originated in English law. In accordance with choice- of- law principles, the Louisiana judges applied equitable
doctrines to contracts governed by the laws of another state. For example, in Lynch v Postlethwaite, the Supreme
Court granted the vendor an order of specific performance of a contract for the sale of a steamboat. The relief
went well beyond standard relief for a buyer’s breach; for without inquiring into whether the purchaser’s breach
had caused the seller irreparable harm, the court ordered the Purchaser to pay the price in the form of a down
payment and a series of promissory notes payable at fixed rates. The payments were conditioned upon the
seller’s delivery of a bill of sale or deed for the vessel’s transfer. 7 Mart o s 293. Notably, the relief in Lynch
more closely followed standard enforcement for an obligation to give under the Civil Code than the relief based
on English equitable standards. For general background on equity in Louisiana, see VERNON PALMER, THE
LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION 223 et seq (2005),
reviewed by Shael Herman, Under My Wings Every Thing Prospers, supra note 8.
40
“The object of the performance is the criterion for the traditional classification of obligations in three
categories, namely, obligations to give, obligations to do, and obligations not to do. In the first two categories the
performance consists of positive acts such as giving or doing something, while in the third category the obligor is
bound to perform through negative acts of abstention or forbearance.” See SAÚL LITVINOFF, 5 CIVIL LAW
TREATISE Section 1.4 (2001). For background on the Roman classifications, see generally Shael Herman,
Specific Performance: A Comparative Analysis I, 7 EDINBURGH L. REV. 5-26 (2003), translated in Shael
Herman, Pacta Sunt Servanda trifft auf den freien Markt: Die Durchsetzung von Versprechen im spanischen und
US-merikanischen Recht, Zeitschrift fuer Rechtsvergleichung, Internationales Privatrecht und Europarecht 94105 (ZfRV 2005/16].
41
CC article 1919.
42
The principle pacta sunt servanda (promises shall be kept) is generally invoked for enforcement of promises
to give or transfer. The principle of pacta sunt servanda was limited by nemo potest cogi ad factum praecisere, a
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XVIII. Code of Practice Remedial Scheme Rests upon the Tripartite Division of
Obligations in the Civil Code (CP 628)
With the phrase “practice of the courts”, CC article 1921, located in a chapter entitled
“Obligations to Do and Not to Do” sent the reader to the Code of Practice chapter entitled “Of
the Execution of Judgments Which Require Something to Be Given or Something to Be
Done.” In that chapter, CP article 628 echoed the tripartite classification of obligations as a
basis for distinctions among execution orders:
Orders of execution are different, according to the nature of the judgments to
be executed; for these judgments may direct that a thing shall be given, or a
thing be done or omitted, or a sum of money be paid, and this variety, subjects
the execution to different rules. . .
XIX. Enforcing Obligations to Give (CP articles 630-635)
Following the principle of pacta sunt servanda, the Civil Code preferred compulsory
performance for enforcing obligations to give. Like modern Spanish law,43 the Civil Code of
1825 presumed the victim was the master of his claim, and that there had to be good reasons
for the court to deny his election of relief. This presumption would significantly reduce a
judge’s discretion in a familiar common law process of weighing the equities. Furthermore,
the Civil Code, unlike common law doctrine, did not insist upon a calculus of market
efficiency that would normally prompt the breach victim to mitigate his damages. As an index
of the Louisiana Civil Code’s disinterest in mitigation of damages, the doctrine was not
codified until the 1985 revision of obligations, though before that year references to
mitigation of damages could be found scattered about Louisiana jurisprudence.44
Lawyers trained in the common law might be frustrated by the absence from the Civil
Code of a criterion of inadequacy of damages, the time-tested equitable standard for granting
a compulsory order. Instead of referring to this standard, CP article 630 prescribed the steps
leading to enforcement of a writ of possession:
principle that has traditionally opposed enforcement of personal acts. The principle of nemo potest shields a
recalcitrant obligor from contempt sanctions and arrest. For the Spanish understanding of the two slogans, see
generally, J.J. Saenz Soubrier, La ejecución en la Nueva Ley de Enjuiciamiento Civil. Título Ejecutivo. Ejecución
provisional y definitiva. in Congreso Constituyente de la Asociación Española de los Abogados Especializados
en Responsibilidad Civil y Seguro, at www.asociasionabogadosrcs.org/ponencias/pon6.pdf, last visited
November 6th, 2007.
43
See, generally, Francisco L Grimalt, Remedies, in INTRODUCTION TO SPANISH PATRIMONIAL LAW 91 (ed. S
Van Erp & A. Vaquer, 2006); RAFAEL SERVER, EL CUMPLIMIENTO FORZOSO DE LAS OBLIGACIONES (1995);
Shael Herman, Specific Performance: A Comparative Analysis, 7 EDINBURGH L. REV. 5-26; 194-217 (2003).
44
See now current CC article 2002 and cases in accompanying comments. It is difficult to generalize about the
prevalence of mitigation among different civilian systems. For example, the Italian Civil Code, enacted in the
1940s, has a strong commitment to mitigation of damages. See generally, CARLO ROSELLO, IL DANNO
EVITABILE. By contrast, modern Spanish law has almost none.
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When the judgment directs one of the parties to deliver an estate to the other,
the clerk must issue a writ of possession, by which the sheriff shall be enjoined
to put him, in whose favour the judgment was rendered, in possession of the
estate and the appurtenances belonging to it, according to the judgment.
Presumably a petitioner who relied upon CP article 630 would not have to defend his
choice of compulsory relief. As the victim of the breach, he occupied the moral high ground,
and the breaching party could not challenge the choice. Accordingly, the victim was entitled
to have the court respect his request for specific performance.
CP article 632 afforded an obligee draconian remedies against a recalcitrant obligor
who resisted a writ of possession:
the sheriff shall [NB: not may] proceed to put in full possession of the estate
the party who has obtained the judgment, and shall compel the other to depart,
even by breaking open the doors, if it be necessary, and by summoning the
‘posse comitatus’ if resistance be made.
CP article 635 amplified the obligee’s coercive remedies:
If the party, who has been condemned to deliver a slave or other object,
conceals it, or carries it out of the jurisdiction of the court, so that the sheriff
cannot seize it, the party, in whose favour the judgment was rendered, shall
have the choice either of instituting an action for damages, or of compelling a
specific execution [exécution spécifique] of the judgment, by obtaining a
sequestration of his other property, until he has satisfied it, in the same manner
as is practiced on judgments directing a specific performance, as is stated
below [French: une condamnation de faire ou de ne pas faire une chose
déterminée, ainsi qu’il est dit ci-après]
Although the Code of Practice authorized draconian remedies to exact an obligor’s
compliance with an order of possession, it did not expressly authorize injunctive relief against
him. Such relief as one could find in the Code of Practice was in rem, not in personam. An
order in favor of the obligee might still affect the object described in the judgment, and
perhaps the obligor’s other assets through a sequestration. It is true that the Code of Practice
envisioned an obligor’s presence during the execution process, but the court would not have
affirmatively ordered him to do anything; rather, the obligor seems to have been viewed as a
bystander observing the sheriff’s actions. CP article 633 suggested the obligor’s passive role:
The party, against whom the judgment has been rendered, shall be considered
to have complied with it, by quitting the estate, and leaving the other party free
to take possession. [Italics added]
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XX.
A Criticism: Absence of Injunction a Defect in Regulation of Specific
Performance
From a common law perspective, the absence from the Code of Practice of authorization of an
injunction against a recalcitrant obligor, backed up by a contempt sanction, seems a
shortcoming in the regulation of compulsory performance. Unhindered by an injunction, a
recalcitrant obligor could frustrate a judgment of possession by mortgaging or selling the
property before recording or publishing the judgment. In that case, even if the debtor “quits
the estate,” as CP article 633 required, the judgment creditor might end up with real estate that
he could not exploit or occupy. Denied possession of the property by a senior mortgagee, a
judgment creditor in an extreme case might still have to service the debt encumber the
property.
If the Code of Practice had authorized affirmative injunctive relief, then the judgment
debtor could have been ordered personally to transfer the property upon the purchaser’s
payment of the price. The order might also have prohibited the obligor from negotiating with
a third party the sale or mortgage of the property. To compel the obligor to perform, the
injunction could have been coupled with several ancillary measures: for example, a contempt
citation against the obligor that was repeatedly enforced by jail sentences, or liquidated
damages that built up daily, like the French astreintes. Yet, this Code of Practice regulation of
the debtor’s duty to comply curiously did not mention contempt sanctions against the debtor.
The injunction was addressed to the sheriff, who presumably would not have been cited for
contempt. Sequestration of a debtor’s assets, breaking in the doors of his storehouse, and
assembling a posse comitatus were concededly powerful tools for pressuring a debtor to
comply with the judge’s order. But an order jailing the debtor for his noncompliance would
have maximized the court’s control over him by depriving him of all power to resist indirectly
the seizure of the estate and its delivery to the creditor.
The absence from the Code of Practice of injunctive relief for enforcing obligations of
giving is puzzling. To a civilian, the absence might seem a token of nemo potest cogi ad
factum praecisere.45 But this answer would be wrong or unduly simplistic. The absence was
surely not due to the drafters’ lack of information about injunctive relief; indeed, the drafters
understood injunctive relief and contempt sanctions very well. The Civil Code devoted a title
to injunctions. Many of the Civil Code provisions were mirrored in CP articles 296-309; these
provisions spelled out specific forms of injunctions as well as measures for enforcement
through contempt and fines.
It is true that the injunctions contemplated by the Code of Practice were prohibitory
rather than affirmative, but the enforcement sanctions including imprisonment would have
been identical in either case. Furthermore, the Code of Practice contained a title “Of the
Arrest of the Debtor.” Consisting of twenty-nine articles, the title detailed both the grounds
for arresting the debtor, and the means by which he could be liberated from confinement.
45
See note 40-42 supra.
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XXI. Speculation about the Influence of Spanish Law upon Regulation of Specific
Performance
Given the importance of Spanish law at the time of the codifications under consideration, the
drafters could have visualized compulsory relief along the lines of modern Spanish law that
regards performance as a standard remedy and backs up this remedy with an embargo. The
law of Spanish Louisiana provided other coercive options that bore a distinct resemblance to
the contempt sanction. For almost four decades immediately before the Louisiana Purchase,
“Luisiana” was governed by Spanish laws including the Ordinances and Instructions of Don
Alejandro O ‘Reilly, the Spanish governor.46 O’Reilly’s Ordinances contained a template for
a remedy analogous to contempt against a recalcitrant obligor. Bearing earmarks of Spanish
laws in ultramarine provinces such as Louisiana (e.g., alguazil mayor, different rules
applicable to different social classes and professions), O ‘Reilly’s regulation of executory
proceedings authorized jailing a debtor for certain forms of disobedience to a court order: 47
[The judge] shall order immediate execution, by addressing an order in writing
to the alguazil mayor, directing him to summon the debtor to pay the demand,
or in default thereof his property shall be seized [. . .] By virtue of the [. . .]
order the alguazil mayor shall summon the debtor; if [the latter] complies the
execution shall cease. If otherwise, his property shall be seized and held in
custody by the depositary general; unless he shall give good and sufficient
security for the payment of the sum in which he is condemned by the sentence.
But if he shall not give security aforesaid, or if he has not property sufficient,
he shall be imprisoned, unless exempted therefrom by the privilege of nobility,
which is also enjoyed by the military, regidors, officers of finance, women,
lawyers, physicians and other distinguished persons. [Italics added]
XXII. Coercive Measures in Las Siete Partidas
Available in 1820 in an English translation prepared by Louis Moreau-Lislet and James
Brown under a commission from the Louisiana legislature,48 the Siete Partidas, III, Title VIII
authorized pressuring a debtor by seizure of his assets. Like modern measures to effectuate
quasi in rem jurisdiction, judicial assentimientos [seizure], could be employed to pressure a
debtor to answer a suit he had been avoiding by granting a petitioner possession of the
debtor’s property. The order would first affect movable assets; if seizure of these movables
did not sufficiently bend the debtor’s conduct to the court order, then the creditor could also
seize his immovables.
46
For background on O’Reilly’s legislation, see generally, Under My Wings, supra note 8, 1563-66.
For background on foreclosure by executory process under O’Reilly’s legislation, see Under My Wings, supra
note 8, 1566.
48
On the Louisiana translation of Las Siete Partidas as a user’s manual for the early civil codes, see generally
Under My Wings, supra note 8, 1559-1563.
47
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We may never know whether Spanish law influenced the drafters’ ideas on
compulsory performance. If, indeed, there was a Spanish influence, it is difficult to point to an
authoritative text because Spanish law was not embodied in a national civil code until 1889.
On a subconscious level, medieval Spanish remedies perhaps affected the drafters’ thinking.
As a law commissioner, Moreau Lislet would have been ideally situated to have taken
guidance from Spanish doctrine. Yet, despite the seizure provisions we have quoted above,
the translators did not translate the Partidas regulating assentimientos because, as the
translation stated, “they [were] not in force here.” According to the translators’ note, “this title
related to the compulsory process by which the plaintiff is put into possession of the property
of the defendant who refuses to appear in court upon citation. As no part of it is in force it is
not therefore translated.”
XXIII. Obligations to Do (CC articles 1920, 1921)
The phrasing of the regulation of obligations to do suggests that common law doctrine
exercised considerable influence upon the drafters’ thinking. Passing from regulation of
obligations “to give” to obligations “to do” the English version of the Civil Code notably
employed the common law term, “specific performance” (French: “exécution spécifique”)
CC article 1920 provided:
On the breach of any obligation to do, or not to do, the oblige is entitled either
to damages, or, in cases which permit it, to a specific performance of the
contract, at his option, or he may require dissolution of the contract [. . .].
[Italics added
English doctrine seems to have especially influenced the phrasing of CC article
1921:
In ordinary cases, the breach of such a contract entitles the party aggrieved
only to damages, but where this would be an inadequate compensation, and
the party has the power of performing the contract, he may be constrained to a
specific performance by means prescribed in the laws which regulate the
practice of the courts. [Italics added]
The Civil Code’s guidance for obligations of doing and not doing could have been
more precise than it was. The goal of the Revision of 1984 was to make the guidance more
precise.49 By limiting specific performance to “cases which permit it,” CC article 1920 seems
to have shifted away from a civilian classification scheme that we had earlier identified for
obligations to give.50 To the contrary, the article seems to have conferred on the judge a
discretion to balance equities that was familiar in common law doctrine. Assuming the
49
See SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.14 (2001).
According to Saúl Litvinoff, the phrase cases which permit it could have been better translated as “if the
execution is possible.” S. Litvinoff, Obligations s 168 in 7 LA CIVIL LAW TREATISE 310-315 (1975), cited in
Weingarten v North Gate Mall, 404 So2d 896, 900 (1981)
50
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drafters’ intention to confer this judicial discretion, the phrase “cases which permit it” may be
understood as a shorthand instruction to grant damages or specific performance depending
upon the anticipated reparability of the prejudice by monetary award. This instruction seems
to have been enlarged by the phrase in CC article 1921 “where this would be an inadequate
compensation.” This last phrase could have easily been understood as following common law
doctrine by granting a judge broad discretion to assess the reparability of the harm.
The last quoted phrase of CC article 1921 recalled the division between ordinary and
extraordinary relief familiar in English doctrine. But we ought not too hastily conclude that
these articles shifted fully to English standards for specific relief. As Saúl Litvinoff has
argued,51 CC article 1921 may have mistranslated the French original. Assuming the
mistranslation, then the article merely articulated a standard of objective possibility by asking
whether an obligor had power to perform in an absolute sense, not whether a compulsory
order would unduly burden the obligor’s activities or the court’s supervisory powers.
If this last assumption is correct, then CC article 1920 would dilute a judge’s
discretion to order or deny performance based upon reparability of the damages. The article’s
ambiguity would have allowed a civilian and a common law lawyer to reach opposed
conclusions based upon the same language. The analyses of the rival traditions would come
down to a matter of judicial discretion about which the code did not speak clearly. The
common lawyer’s conclusion would be along the lines already discussed. Applying a
traditional Romanist standard, however, a civilian could conclude that the phrase “cases
which permit it” assumed that the requested performance was objectively possible, i.e., the
contractual object existed; the obligor had the power to perform, and the obligee still desired
the performance. If, so the civilian would argue, the court lacks the discretion to deny the
remedy sought by the aggrieved plaintiff, then the clause “cases which permit it” is not an
instruction to inquire into the burdensomeness of the performance for the obligor, the
feasibility of having the creditor mitigate his damages, or the difficulty of judicial supervision
of the order.52
As suggested at the beginning of this section, the ambiguous regulation of compulsory
execution in the two codes is likely productive of a sort of confusion that can occur in a mixed
jurisdiction in which the drafters, marching to different drummers, have afforded courts very
different methods for determining proper enforcement remedies. Taken together, CC articles
1920-21 should have prompted the aggrieved victim to reflect soberly upon the risk associated
with assuming either an approach based thoroughly upon common law doctrine or the civil
law approach to remedies for breach. The current obligations articles should render his choice
of relief clearer than it was under the Code of Practice. But even today, judicial tests for
performance remedies seem inconsistently applied. To avoid granting specific performance,
Louisiana courts seem sometimes to embrace a deus ex machina that encourages sidestepping
enduring questions first raised in the two codes.53
51
See Justice Dennis’s scholarly analysis in Weingarten v Northgate Mall, 404 So2d 899-901.
These civilian arguments are based upon 2 S. Litvinoff, Obligations, Section 168, 7 LA CIVIL LAW TREATISE
310-315 (1975), cited in Weingarten v Northgate Mall, 404 So 2d 899-901.
53
Weingarten v Northgate Mall is instructive because the court in that case seems to have welcomed a deus ex
machina. On initial impression, the facts presented a strong case for specific performance: the landlord’s
52
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Curiously, at least to a civilian, the deux ex machina might even involve reproaching
an innocent breach victim although his proper conduct should put him on the moral high
ground and thus beyond reproach.54 Though Louisiana courts have regularly declared specific
performance the primary or preferred remedy for breach of an obligation to give, the victim in
many instances must still bear the burden of showing his entitlement to the remedy. Specific
relief is surely not his for the asking, it is fair to expect that a typical Louisiana court, in
exercise of its considerable discretion, would insist upon balancing equities along lines
familiar in English doctrine. In some cases the court could require of the plaintiff security for
specific relief as well as proof of his mitigation efforts. Assuming the likelihood of this
judicial behavior when a plaintiff requests specific performance, then the avowed judicial
commitment to specific performance could ring hollow for many petitioners. In my opinion,
our law has gone too far down an Anglo-American road for the current Civil Code standard
for specific performance significantly to strengthen the plaintiff’s hand.55 This review of the
codes of 1825 suggests that we have been traveling that road for almost two centuries.
actionable breach consisted of an obligation not to do, for which specific performance would have been the
appropriate remedy. As is typical in shopping center leases, the landlord affirmatively covenanted not to expand
its improvements without the prior written consent of the tenants. Such a covenant typically contemplates that a
landlord’s expansion will at a minimum reduce available customer parking below a stipulated ratio (e.g., so
many spaces for so much of tenant’s leased footage). Furthermore, the landlord’s construction work could have
seriously disrupted the existing tenants’ businesses. By requiring the landlord to obtain the tenant’s written
approval, the parties could have negotiated arrangements to minimize harm from disruptions. According to the
version of the Civil Code in force at the time that the Weingarten facts occurred, obligations not to do were
compellable by specific performance and injunctions. Furthermore, Weingarten and the landlord had stipulated
that in the event of default, specific performance would become available without a showing of irreparable harm.
There was also no reasonable way for the plaintiff to have mitigated its damages from the breach. Weingarten
sued the landlord to halt construction of a new expansion of the mall, and to demolish all buildings erected in
violation of the landlord’s obligation. The court of appeal confirmed an injunction against the defendant, finding
that specific performance was warranted; it noted that the parties had contracted for the remedy of specific
performance without a showing of irreparable harm. The supreme court agreed that the breach had occurred, but
found specific performance inappropriate because of the financial burden imposed upon the breaching landlord.
The court also found that the demolition of the offending buildings would have unduly taxed the court’s
supervisory powers unreasonably. The judges were impressed by the fact that third parties in good faith (e.g.,
lenders and new tenants) had acquired rights in the property in reliance upon the legality of the enlarged
improvements. The deus ex machina to which I referred appeared in Justice Dennis’s brief, off handed reproach
of the plaintiff for a procedural mistake: on being denied preliminary relief by the trial court, the plaintiff did not
promptly take an appeal of right to challenge the correctness of the trial judge’s denial. Instead, the plaintiff
waited to appeal the ruling until after the merits trial seeking a permanent injunction. By that time, observed the
Justice Dennis, the landlord’s expansion project was nearly complete and new stores therein had opened for
business. Query, at the time of the original suit, could the plaintiff have filed a lis pendens in the public records
to notify the new tenants that they were building at their own risk? The decision does not say. For our present
inquiry, evaluating the opinion is also complicated by the fact that the civil code articles at issue dated back to
the Civil Code of 1825, while the relevant procedural regulation of injunctions, inspired by common law
standards and the federal rules of civil procedure, appeared in the Code of Civil Procedure enacted in the 1960s.
54
This suggests a type of moral hazard in which the law seems to favor the wrongdoer whose actions have
produced the damages that the victim complains of.
55
For the Civil Code’s current standard for specific performance, see now CC article 1983. Upon an obligor’s
failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument the court shall
grant specific performance plus damages for delay if the obligee so demands. If specific performance is
impracticable, the court may allow damages to the obligee. Upon a failure to perform an obligation that has
another object, such as an obligation to do, the granting of specific performance is at the discretion of the court
“To reinforce the policy of article 1983, comment a declared that a “claimant has a right to specific performance
rather than a mere right to appeal to the discretion of the court.” Yet, despite this policy, subsequent cases have
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XIV. In Conclusion: A Cautionary Note
It would be helpful to know whether the examples of analogical interpretation suggested in
this essay are emblems of a broader phenomenon in the codes. Especially with the Code of
Practice, care must be exercised with the analogical method for it is not a universal tool.
Some titles of the Code of Practice (e.g., prerogative writs, jury trials, habeas corpus)
codified common law institutions not elaborated in the Civil Code. Well known in
Louisiana even before statehood, these institutions were meant to give Louisiana a face
familiar to other states and the federal government. I doubt that these institutions would
respond well to analogical interpretation. Putting these institutions aside, however, the
Code of Practice still contained several hundred provisions based upon a civilian lexicon.
At least the first four hundred fifty articles fit this description. By analogy, these articles
should yield many links with the Civil Code of 1825. As we have shown with “term”, for
example, a researcher could trace through the codes the use of any talisman or term of art
(e.g., synallagmatic, aleatory). Often the conceptual framework of a particular Civil Code
chapter (e.g., mortgages) presupposed a related procedural framework (e.g., hypothecary
action), and these conceptually related regulations in the codes may be analyzed in tandem.
An earlier paper identified in both codes a parallel regulation of injunctions for which
analogous interpretation was indispensable.56
Beyond the scope of this paper, it would be interesting to categorize and evaluate
cases in which Louisiana courts recognized analogies between the Civil Code and the Code
of Practice. For example, in Soulie v Soulie,57 the defendant was sued in the probate court
as curator of an absentee. The Supreme Court ruled that the probate court lacked powers
other than those specially delegated by statute. It found that CP articles 924, 925, 963, and
965 regulating the powers of curators did not grant the probate court authority to adjudicate
claims against an absentee’s estate. To reinforce its interpretation of the relevant CP
articles, the court drew analogies between CP articles and CC article 53. Suggesting that
the legislature continued to think of the two codes together long after their enactment dates,
the Supreme Court also noted that a legislative act of 1828 simultaneously amended certain
articles in both the Civil Code and the Code of Practice.
made clear the judicial intention to retain discretion over remedies. In Concise Oil & Gas Partnership v
Louisiana Intrastate Gas Corporation, 986 F 2d 1463 (Cir 5), a seller sued for specific performance of a gas
contract. The court confirmed that specific performance was the preferred remedy, but that the remedy could be
withheld when specific relief was impossible, when inconvenience or cost of performance was greatly
disproportionate to the resulting damages, when the obligee had no real interest in receiving performance or
when the specific relief would have substantial negative effects on interests of third parties. These criteria
followed those announced in Weingarten v Northgate Mall. According to the court in Concise Oil & Gas, an
order of specific performance was unnecessary because the petitioner had been fully compensated by a damage
verdict. Although the court did not mention this point, specific relief for a seller is extremely rare because he
cannot sue the purchaser for performance of a duty to pay the price unless the object of the sale has already been
delivered to the buyer, leaving only a seller’s executory duty to pay the price. But see Lynch v Postlethwaite,
supra note 45.
56
See Under My Wings, supra note 8, 1568-1570.
57
5 La 26, 1832 WL 947.
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By concentrating alternately upon clusters of provisions in each code, this essay has
sought to demonstrate ways in which analogical interpretation enlarged each code’s
meaning beyond limits it would have reached if read in isolation. This exercise in analogy
has two interconnected rewards. First, the technique promotes logical coherence and
elegance; it aids discovery of principles and policies in the codes that might otherwise
remain hidden. Second, the exercise poses a navigational exercise for exploration of two
codes no longer in force. Far from an antiquarian curiosity, this exercise, as a vehicle for
refreshing in us the thought patterns of our legal ancestors, recalls the unique role of our
legal heritage in American law.
Our dependence on an American legal curriculum heavily weighted toward case
law puts us at risk of losing our paths among our codes. As lawyers, we read cases by
analogy every day; indeed, this is an essential goal of stare decisis, for it assumes that like
facts warrant like rulings. Analogical reading of cases is routine, though these are usually
the products of different judges who likely never knew each other, may have had different
legal philosophies, and lived at periods remote from each other. If these obstacles do not
hinder our exercises in analogy, then a fortiori we should read the subject codes by analogy
because they were created by a single team of commissioners who conceived them as a
unitary project.
Cite as: Shael Herman, The Uses of Analogia Iuris in the Louisiana Code of Practice (1825), vol. 12.3
ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2008), <http://www.ejcl.org/123/art1232.pdf>.
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