Civil recodification in an anglophone mixed jurisdiction: a bricoleur's playbook.
Before 1989, a Louisiana forced heir's inheritance rights enjoyed broad protection under the Civil Code. An heir typically challenged his ancestor's transfer to a third party in the context of the latter's succession. An aggrieved heir usually claimed that the ancestor's transfer was in reality a donation to a third party that impinged upon the legitime, that is, the fraction of the estate reserved for a forced heir. The heir's action, characterized in French doctrine as an "action en declaration de simulation," resembles the revocatory and oblique actions, in the sense that it grants rights to third persons not parties to a challenged transaction. (111) The action, invoked by a creditor seeking to satisfy a debt the transferor owes him, alleges a debtor's concealment of property to the creditor's prejudice. A forced heir's action alleges an unjust impingement of the ancestor's estate; he claims that the estate, reduced by the value of the gratuitous transfer, contains insufficient assets to satisfy the forced heir's claims. Alternatively, if the ancestor had actually preferred one heir over others by making a real donation, the aggrieved heirs could challenge the transaction and seek a reduction of the amount received by the preferred heir. (112) In a typical fact pattern, the ancestor continued to possess the transferred asset, although it stood in the transferee's name after the recorded transaction. By relying upon Civil Code article 2480, the attacking heir could shift to the transferee the burden of proving the reality of the sale. It is unlikely that the transferee could successfully carry that burden. (113)
To foil a forced heir's challenge, a lawyer typically would disguise the donation as a fictitious sale. (114) According to wisdom among practitioners, if there were a sale, then the attacking heir's challenge would meet the argument that the transferor's patrimony was enriched by an equivalent value, thus foiling the aggrieved heir's claim of harm. In a disguised donation between parent and child, there would typically be no counter letter because the parties, concerned that another child could challenge the transfer, preferred not to arm the challenger with a counter letter that would enable her to set the transaction aside.
Around 1989, the Louisiana legislature narrowed the class of forced heirs to children under twenty-three years of age and children of any age who have a mental or physical handicap and are permanently incapable of caring for their person or administering their estate. (115) This legislative measure substantially reduced the class of potential challengers of an ancestor's transfer based upon an impingement of the legitime, i.e. the forced share. As a result of this legislative change, creditors, rather than heirs, are today the likely challengers of simulations. Financial reverses suffered in the aftermath of Hurricane Katrina (2005), the subsequent collapse of the real estate markets, and the BP oil disaster in the Gulf of Mexico (2009) have likely increased the proportion of challenges filed by creditors rather than heirs.
e. Simulation To Shield Property from Transferor's Creditors; Non-Transfer Simulation
In a non-transfer simulation to defeat creditors, a transferor conveys an asset to a trusted third party who has agreed to shield the property from seizure by the transferor's creditors. Ideally the transfer should have occurred before any creditor has recorded her judgment against the transferor. If the judgment has been recorded before the transfer to the third party, the transferor's aim is frustrated because the judgment will follow the asset now standing in the transferee's name. For the transferor's aim to be fulfilled, no such judgment should have been recorded. In that event, the transferee acts as a trustee for the transferor's benefit. The counter letter declares that the transferee, in fact not having acquired ownership of the asset, will execute a public act promising to return it on the transferor's request. Unlike a trust, this non-transfer simulation does not insulate the asset from the transferor's creditors by establishing in the transferee a patrimony distinct from her personal estate. So far as third parties are concerned, the personal assets of both the transferee and the transferor are vested in a single patrimony. Hence, the transferee's creditors can attach the transferor's asset though it may stand in the transferee's name. In this circumstance, the transferor risks losing the property if her transferee is financially irresponsible or dishonest, for in this case the latter could suffer a personal judgment for her own debts while the asset stands in her name. Assuming that a seizing creditor of the transferor can produce a counter letter showing that the transfer had no reality and the asset's ownership remained vested in the transferor, then she will be able to seize the asset in the transferee's hands.
f. The Law in Action Rationalized by Recodification and Enlargement of Simulation
We have described simulations and counter letters as they existed before the enactment of the obligations revisions of 1984. Longstanding practices combined with the needs of commerce to assure that simulations and counter letters would endure on the Louisiana landscape, making the reporter's task to craft durable and predictable designs for the institutions. As we have suggested above, the original fragmentary regulation of simulation constituted a thin reed upon which to erect an entire legislative structure. The revision of simulation illustrated a process of bricolage in which the reporter, recognizing the need for innovation, nonetheless incorporated many well-established elements so as to allay the legal community's suspicion of unwarranted innovation. It was hoped that a well-crafted regulation would instruct a lawyer without shocking him, largely confirming his fragmented conception of an institution.
Unlike the original articles on simulations, which seemed no more than corollaries of implicit first principles, the new regulation of simulations was anchored in explicit principles and definitions. For example, current Louisiana Civil Code article 2025 states: "A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties. If the true intent of the parties is expressed in a separate writing, that writing is a counter letter." (116)
Regulating absolute simulations, current Louisiana Civil Code article 2026 provides: "A simulation is absolute when the parties intend that their contract shall produce no effects between them. That simulation, therefore, can have no effects between the parties." (117)
Current Louisiana Civil Code article 2027 defines relative simulations:
A simulation is relative when the parties intend that their contract shall produce effects between them though different from those recited in their contract. A relative simulation produces between the parties the effects they intended if all requirements for those effects have been met. (118)
Current Louisiana Civil Code article 2028 provides: "Counter letters can have no effects against third persons in good faith." (119)
Companion comments for the current simulation regulation seem to exhibit evasive patterns like those identified earlier. (120) This evasive style may be instructively contrasted to the directness of comment e accompanying current Louisiana Civil Code article 2028. (121) Unlike comments suggesting an archetypal institution prevalent in legal practice rather than the books, comment e was securely anchored in specific facts and statutes.
Article 2028 eliminates the reference to the rights of forced heirs that was introduced into Louisiana Civil Code article 2239 (1870). The reasons for that amendment are unclear. Whatever its purpose, the amendment has had almost no impact on the jurisprudence since it was enacted. (122)
The style of this explicit comment is characteristic of comments that alert readers to a specific change to a rule in the books, rather than the law in action. It should leave little doubt about a new rule's legislative purpose.
g. Former Louisiana Civil Code article 2239 and Current Louisiana Civil Code article 2028 in Light of Practices Involving Simulations
Without context, the effects of former Louisiana Civil Code article 2239 and current code article 2028 are murky. This seems to be the case because the shadowy structures of simulations and counter letters required exegesis. Like former Civil Code article 2239, current article 2028 contemplates a real or pretended transfer, effected to shield the property from creditors. The comments might have been clearer if they had noted a crucial chronology--the rule assumed that the execution of the counter letter predated the creditor's seizure--yet it was unrecorded at the moment of the seizure. The counter letter may indicate that the transaction was either a donation (i.e. a disguised transfer or a relative simulation), or that the transfer had no reality at all (i.e. a non-transfer or absolute simulation).
In either hypothetical simulation, a third-party creditor may know of the unrecorded counter letter. But her knowledge does not deprive her of the status of a good faith acquirer. That status endures even if the transferor, hoping to halt the seizure, or tardily, to divest the transferee's title, now records her theretofore unregistered counter letter. The transferor has foolishly jeopardized her interest in the transferred property by vesting title in a financially irresponsible transferee.
Former Civil Code article 2239 and current Civil Code article 2028 also contemplated recordation of a counter letter before a third party creditor or a good faith purchaser acquired an interest in the property. (123) The recordation of the counter letter puts the third party on notice and cuts off her good faith status. The terms of the counter letter bind both the transferor and the transferee and have priority over a third party's tardily recorded interest. Curiously, parties who initially could not have been trusted to tell the truth on the public record, notwithstanding their sworn declarations before a notary public, are presumed by long tradition to have redeemed themselves by telling the truth the second time around in their counter letter. Paradoxically, a counter letter recorded before a later-filed judgment binds a judgment creditor although she had no reason to check the public record when she filed her judgment. Bound by the public record, which now reflects both the original sham transaction and the counter letter, a transferee's purchaser and mortgagee suffer the subordination of their rights according to the stipulations in the counter letter. Nevertheless, a third party can demand damages from the original parties to the transaction. If she prevails, then she may be in a position to execute promptly her new money judgment against the asset in question.
h. Inspiration for Regulation of Simulation
Comments accompanying the new simulation articles credit the influence of the Italian Civil Code's regulation of simulation. (124) However, the Italian Code does not explicitly distinguish absolute simulations from relative simulations; nor does the Italian Code explicitly regulate counter letters, though it contemplates effects of secret acts confected by the parties. Following a previously identified pattern, the Argentine Civil Code seems a charming inspiration for the Louisiana regulation of simulation. Argentine Civil Code article 989 provides:
Simulation is present when the juridical character of an act is concealed under the appearance of another act, or when the act contains clauses that are not sincere, or dates which are not true, or when rights are constituted or transferred thereby to interposed persons, other than those for whom they are really constituted or to whom they are
Argentine Civil Code article 990 states: "The simulation is absolute when a juridical act is celebrated which is not real in any respect, and relative, when employed in order to give to a juridical act an appearance which conceals its real character." (126) Thus, the Louisiana revision seems to have continued the absolute-relative distinction found in Argentine law.
i. Relative simulation in Argentine Civil Code?
Argentine Civil Code article 994 regulates counter letters to a greater degree than its Louisiana counterparts. Especially noteworthy is the conscientious judicial approach to an apparently simulated transaction:
When there is a counter instrument [counter letter] regarding the simulation signed by either of the parties, the purpose of which is to avoid the simulated act, whether the simulated act was ... unlawful ... explaining or restricting the previous act, the judges may take cognizance of both the counter instrument and the simulation, if the counter instrument does not contain anything opposed to the prohibition of the laws, or against the rights of a third person. (127)
An experienced lawyer can intuit the issues of proof and procedure characteristic of a simulation action, but this Argentine provision deftly guides the inquiry of the judge.
D. REVISION OF SALES: MOVABLES
In earlier sections, provisions of the Argentine Civil Code sometimes functioned as legislative prisms through which one could view the Louisiana Civil Code. Looking through the Argentine prisms, we identified influences of the original Louisiana Civil Code upon the more recent Argentine Code and speculated about the latter's unacknowledged influences upon current Louisiana articles. If, in looking at these influences, the metaphor of a prism seems useful, then the present section may be seen as a hall of mirrors that reflects continuities between the UCC and the Civil Code. One such continuity, the "hub-and-spoke" pattern, is a classical feature of civil codifications that also figures into the UCC. (128) Also evident are the patterns of kinship among the UCC, the revised Louisiana Civil Code, and the Vienna Convention on the International Sale of Goods (1980).
1. ROLE OF SUPPLETIVE AND IMPERATIVE TERMS IN CIVIL CODE
A civil code modeled upon the French Civil Code typically classifies contractual terms as either imperative or suppletive. "Imperative" elements are indispensable to a valid contract; these elements determine the contract's place in a taxonomy of nominate contract types. For example, the nominate contract of sale requires an object and a price that the parties must truly intend to exchange.
According to the Louisiana Civil Code, the sale, in addition to specifying an object and a price, is affected by a certain number of non-disclaimable (i.e., imperative) norms such as good faith. In addition to such imperative terms, the Civil Code supplies suppletive terms for contracts. The legislation inserts these terms into a contract when the parties have failed to agree on them. For example, if the parties have been silent on warranty protections, then the Civil Code's suppletive provisions add certain warranty regulations to the contract. In a general way, the Louisiana Civil Code's suppletive terms are invoked as supplements to the expression of the contracting parties' wills.
2. HUB-AND-SPOKE PATTERN ASSOCIATED WITH SUPPLETIVE-IMPERATIVE DISTINCTION
Associated with the hub-and-spoke structure of a civil code are a traditional distinction between suppletive and imperative terms, on one hand, and a taxonomy of nominate contracts on the other. The three features contribute to the code's concision and systematic interpretation. Visualized as a wagon wheel, the code's contract regulation consists of a central hub and numerous spokes. The hub constitutes a repository of norms and rules applicable generally to all contracts, irrespective of particular features that classify it as one specific nominate contract. The contents of the hub may vary from one civil code to another, (129) and the hubs may take different forms. For example, the Swiss legislator separated his code of obligations from the nation's civil code and has treated the former as a hub for the latter.
A typical hub collects regulations on contract formation, vices of consent, and kinds of obligations. In the Louisiana Civil Code, the hub (Civil Code articles 1756 to 2314) collects the rules on contract formation, kinds of obligations (i.e. joint, several, solidary, indivisible, conditional, subject to a term etc.), cause, object, and general norms such as good faith. (130) Governed by a particular title, each nominate contract, appearing after the obligations provisions, occupies one or more metaphorical spokes, has distinctive characteristics, and often invokes by analogy the application of the obligations provisions. (131) Nominate contracts have many common features because they are all anchored in shared norms and rules collected in the central hub.
3. THE UCC HUB-AND-SPOKE ANCHORED IN CIVILIAN TRADITION
Imperial Roman jurists originated an elaborate taxonomy of nominate contracts. Generally, each nominate contract (132) had distinctive remedial formulas that the Roman index relied upon in granting or denying relief to an aggrieved party. The Roman contracts continued into the Middle Ages, and many became lodged in modern civil codes beginning with the Code of Napoleon. The classification of nominate contracts, the suppletive-imperative distinction, and the hub-and-spoke configuration--all familiar features of the Louisiana Civil Code-constituted innovations in Karl Llewellyn's Uniform Commercial Code. With his code, Llewellyn sought to bring to contracts a systematic analysis and consistent thought patterns that a dominant case law method had not sufficiently stressed. Traditional American courses in contracts did not systematically explore a series of nominate contracts, nor did the courses typically distinguish nominate from innominate contracts. Instead, the courses frequently explored universal norms without distinguishing one contract from another. If the United States curriculum distinguished among contracts, the distinction lay in a contrast between gifts and bargains, and, perhaps, to a lesser degree, a contrast between formal and informal agreements. Separate courses might address contracts of agency, partnership, and suretyship; but these courses were not obligatory offerings, and they now seem vestigial. In any case, the case law method of instruction seems hardly to have recognized these contracts as different nominate contracts in a taxonomy of contractual archetypes.
4. "CIVILIAN" FEATURES OF THE UCC'S STRUCTURE
Along several dimensions, the UCC broke new ground in American legislative method and contract doctrine. Emblematic of an important methodological insight, the UCC, both explicitly and by analogy, codified characteristics of different kinds of contracts for the legal communities of the several states. The shared characteristics figured in a common fund of norms and created a generalized analysis of contracts. These norms were supplemented by specialized rules that varied according to the nature of a specific contract in question.
UCC [section] 1-102 signaled links between the hub and various spokes. (133) "This article [i.e. [section] 1-102] applies to a transaction to the extent that it is governed by another article of [the Uniform Commercial Code.]" (134) Affected by a range of highly particularized rules (e.g. warranties, time and manner of delivery of goods) many of which appeared in UCC article 2, an archetypal sale of goods, as a specific example within a broad category of contracts, was also regulated by article 1's general norms, such as good faith and reasonableness, as well as interpretive canons applicable to all contracts. From a civilian perspective, article 2, without using the term "nominate," essentially regulated a nominate contract of sale of movables. The regulation of sales appeared alongside other spokes that affected agreements such as movable leases (article 2A), negotiable instruments (article 3), letters of credit (article 5), and secured transactions (article 9).
The battery of norms collected in UCC articles 1 and 2 made it resemble the general part of a typical civil code. A continental scholar may reasonably object that the UCC's general part was more abbreviated than those of classic civil codes like the Louisiana Civil Code and the German Civil Code. Furthermore, the UCC did not use the term "general part," though Llewellyn would surely have appreciated that institution as he prepared a doctorate in Germany. Indeed, the UCC's distinctive voice and lexicon generally steered clear of civilian terminology, probably because its main drafter, Llewellyn, feared that unnecessary reference to European law, especially German law, could jeopardize his project. (135)
The UCC's hub-and-spoke organization enabled lawyers and courts to analogize among various contracts, especially when the rules applicable to a disputed matter appeared mainly in the hub. A judicial practice dubbed the "spreading analogy of UCC Article 2" (136) invited the application of general UCC norms to transactions that the UCC did not expressly regulate. Llewellyn urged consistent use of a specialized lexicon of terms that would facilitate analogical interpretation. Akin to a general part, Article 1, as well as parts of Article 2 (Sales), identified principles that were to be read in pari materia with the UCC's titles on the sale of goods.
Under the pressure of commercial realities, UCC article 2 innovatively regulated sales concluded by an exchange of printed forms. (137) A by-product of assembly-line manufacturing, high velocity negotiations, and just-in-time inventory systems, contracts concluded by an exchange of forms had long bedeviled both lawyers and courts. This was so because the parties' negotiations, instead of being characterized by a traditional process of dicker and bargain over individual terms, turned into a documentary duel, in which each party's form sought to neutralize or cancel out terms of the other's document. According to the commercial doctrine that dominated mid-twentieth century thinking, a mirror image rule required a contract's formation to hinge upon a precise reflection of a seller's proposal in a buyer's acceptance. Strict application of the mirror image rule inevitably hindered formation of agreements, for, in reconsidering his agreement, a party could always find inconsistencies among documents he had exchanged with the other party. Furthermore, the parties' imperfectly concluded agreement posed particularly vexing problems of interpretation and enforcement if they jumped the gun by beginning performance before settling all relevant duties. (138)
To salvage an agreement from the wreckage of the parties' dueling forms, article 2 recognized that a contract consisted of a formation phase and a performance phase. The latter phase was fleshed out by reference to the parties' conduct as well as customs and usages dominant in their line of commerce. (139) Although such customs are traditional features of a lawyer's situational sense, these additional indicia of the party intentions require alignment between the law in the books and practical realities. Furthermore, UCC [section] 2-207 declared that an agreement concluded by an exchange of forms consisted of terms on which the forms agreed along with features of a default contract type that filled gaps in their expressed intentions. (140) From a civilian perspective, the use of a contract type, standardized in the legislation, evoked a practice familiar in continental regulation of contracts.
5. LODGED IN UCC ARTICLE 2, NORMS INSPIRED BY CONTINENTAL PRACTICE FILLED GAPS IN LOUISIANA CIVIL CODE'S REGULATION OF SALES OF MOVABLES
The early Louisiana Civil Code drafters, like their French counterparts, visualized immovable transactions in terms of a contract's two phases--formation and performance. (141) The drafters seemed rather myopic in regulation of movable sales, as was the traditional Louisiana curriculum: Following an emphasis upon immovable transactions, Louisiana obligations courses neglected movable transactions. If a student desired a detailed understanding of the regulation of movable sales, she was advised to enroll in a general course about the UCC. (142) In hindsight, the Civil Code's stress upon immovable transactions and the UCC's emphasis upon movable transactions were emblematic of their different historical eras and the realities of American law. The UCC's emphasis on movables (or chattels) was reinforced by traditional choice-of-law principles that protected each state's authority over interests in land lying within its borders. Furthermore, among the states, great variation in the regulation of real estate made it difficult to reach consensus on routine questions that arose in real property transactions.
Emblematic of patterns of early nineteenth century commerce regulated by the first Louisiana Civil Code, the sales titles reflected agrarian values in which sales generally concerned immovables, not movables. Over the next century and a half, business practices among merchants and consumers evolved rapidly; landed wealth found a rival in movable wealth, especially incorporeals such as stock shares in publicly traded companies and more recently, intellectual property. Meanwhile, the complexity of products made it increasingly difficult for a buyer to identify a product's defects and negotiate protections against them--the increased speed of manufacturing and globalized production were mirrored in high velocity contractual negotiation. Like their counterparts elsewhere in the United States, Louisiana merchants confronted a welter of negotiating tactics in chattel transactions executed along lengthening supply and manufacturing chains. As the companion comments for the Louisiana regulation of movable sales observed:
[T]here is a limit to what mending legislation and judicial interpretative ingenuity can do with a legislative scheme that no longer adequately serves' needs of the community. While it was becoming increasingly obvious that the Louisiana Civil Code articles on sales were insufficient to meet the needs of Louisiana citizens, legislative innovations in the area of sales, both in the United States and abroad made the agedness [sic] of the (Louisiana) sale articles ... and the urgency of their revision glaringly clear. Article 2 of the U.C.C. and the 1960 Convention on International Sales are recent legislative models providing realistic approaches to contemporary sales problems that stand in sharp contrast to the elegant, yet outdated provisions of the Louisiana Civil Code. (143)
Until the reform of the Civil Code's sales articles, Louisiana law provided virtually no regulation of movable contracts and supplied no guidelines for an associated battle of forms. Although a traditional mirror image rule functioned reasonably for immovable transactions characterized by rigorous conformity between offers and acceptances, the speed at which negotiations proceeded made that same mirror image rule less helpful for controversies arising out of communications among merchants.
6. VIENNA CONVENTION ON INTERNATIONAL SALE OF GOODS AND UCC CONTRIBUTE TO NEW LOUISIANA REGULATION OF MOVABLE SALES
To fill the gaps in the regulation of movable sales, Professor Litvinoff and his committee drew inspiration from features of both the UCC and the U.N. Convention on Contracts for the International Sale of Goods (CISG). (144) Some of these features stemmed from rapidly globalizing continental practices. The UCC adapted traditional continental gap filling techniques and linked them with "supplementary" terms (UCC [section] 2-207 (3)). (145)
Interpretation of UCC [section] 2-207, case law, and doctrine recognized the signals of gap fillers in statutory phrases such as "unless excluded or modified" (146) or "unless displaced." (147) Although American courts did not consciously link UCC supplementary terms and cognate suppletive terms in a civil code, the UCC jurisprudence recognized ways in which these terms fleshed out gaps in the parties' expressions of will. The Louisiana Civil Code drafter, likely inspired by the longstanding function of suppletive terms in contract interpretation, seems to have adapted the UCC idea of supplementary terms in sales by exchange of forms. Put differently, analogical reasoning enlarged the "suppletive" terms identified in current Civil Code article 2602 to a new regulation of movable sales. The new article provided:
A contract of sale of movables may be established by conduct of both parties that recognizes the existence of that contract even though the communications exchanged by them do not suffice to form a contract. In such a case the contract consists of those terms on which the communications of the parties agree, together with any provisions of the suppletive law. (148)
According to the legislative expose des motifs for Louisiana's new regulation of sales, the UCC, which was influenced by certain continental drafting techniques, reciprocated continental influence by inspiring provisions in the Louisiana sale revision. Recognizing the risk that the mirror image rule might unnecessarily impede contract formation, Louisiana Civil Code article 2602 followed a norm that UCC [section] 2-207 had adapted from continental practice.
7. UPDATE OF UCC [section] 2-207
By adapting UCC patterns for movable sales, the Louisiana drafters gave us new problems of time and space. If UCC solutions were now to figure into the Civil Code, then the drafters also should have indicated the relevance for Louisiana lawyers of case law interpretations under the UCC from other states. Now that the CISG has become the law of the land by virtue of the Supremacy Clause of the U.S. Constitution, it is applicable to Louisiana transactions within its scope; a fortiori, these UCC insights are still more important. In regard to the time problem, the UCC relied upon by the Louisiana drafter continued to evolve after the revisions. The drafters did not clearly indicate the importance, if any, to be given modernization of the UCC itself. In other words, would Louisiana lawyers have to endure continuing isolation because the Louisiana revisions had been influenced by the original UCC, but not the UCC revisions or case law arising after the Louisiana revisions? Consider this last point by reference to UCC [section] 2-207.
A revised and updated UCC [section] 2-207, proposed after the effective date of the Louisiana sales revision, would have eliminated the word "supplementary." Louisiana practitioners ought not ignore such changes because a merchant outside Louisiana would inevitably be guided by a later version of the UCC if her state has enacted it. This prospect would become a certainty if the parties concluded an agreement to be interpreted under another state's law.
Fortunately, the idea of supplementarity of terms has endured in the UCC [section] 2-207. The UCC comments regard as contractual gap fillers general norms that may be incorporated under provisions of the UCC--mandatory, i.e. non-disclaimable, terms, characterized long ago by Llewellyn as "iron rules of public policy," (149) including good faith, reasonableness, and unconscionability. By agreement the parties may renounce or modify other terms, such as warranties. But if their writings are silent on disclaimable items, then a court may check the UCC for directions on filling the contractual gaps. (150)
IV. DESIGNING A SCORECARD: HAVE THE REVISIONS BENEFITED THE LEGAL COMMUNITY?
This question recalls the retort of the Chinese leader Zhou Enlai when he was reportedly asked by Henry Kissinger whether the French revolution was successful. Zhou's answer: "It is too early to tell." Assuming a more realistic, less coy answer were required for the obligations revision, one might reply with this question: From whose vantage point are we to make the assessment? Concerning Louisiana's original Civil Code, we could say that it was a success because it has shaped the Louisiana lawyer's self-identification--the Civil Code is the key to the system's mixed nature.
For a revision of the original Civil Code, such claims of success are more difficult to support. The terms "success" and "failure" are unhelpful criteria for assessing the impact of the obligations revision over the last twenty-five years. Such an assessment perforce has limited goals because the data are limited to changes and refinements of law in the books--in the form of legislation, cases, and doctrine. There seems no reliable way to assess the revision's effects upon the law in action.
A. LIMITATIONS UPON REPORTER'S MANDATE
The reporter's primary mission was to update and streamline the pre-existing law in the books and, wherever possible, to align it with the law in action. He had no general mandate to deviate from policies embodied in the preoexisting law. Such deviations from policy lie within the province of the Louisiana State Law Institute. For example, the evolution of detrimental reliance in Louisiana jurisprudence and the Supreme Court's historical rejection of promissory estoppel required a policy decision to incorporate those doctrines into the revision. (151) For this proposed incorporation, the staff of the Law Institute prepared a separate report and evaluation. Without explicit instructions to modify the code's definition of cause, it seems unlikely that the reporter would have proposed article 1967 in the form it ultimately took. (152)
B. FIELD RESEARCH: OF POLLS, POLL TAKERS, AND RESPONDENTS
Without reliable polls conducted by competent pollsters among practitioners willing to share their experiences, it is difficult to identify changes in practice that were prompted by legislative revisions. It is difficult even to identify the appropriate respondents among practitioners and judges. Obstacles to identification of respondents include the division of labor in law firms; their duty to maintain client confidences; their protection of valuable work products; and their geographic dispersion. Even assuming identification of cooperative respondents, it would be difficult to construct reliable questionnaires. Such questionnaires should enhance the prospect of studying the alignment of the law in the books with the law in practice, but the alignment is not assured. Among researchers, a meliorist impulse is likely to infuse questionnaires with hope for progress evidenced in an improved fit between the two spheres. Responsible questionnaires ought to be drawn neutrally so that a respondent may provide a balanced evaluation rather than applause or condemnation of the revisions.
C. VARIABLE STANDARDS ARE DIFFICULT TO DEFINE
Without reliably drawn questionnaires, our assessment necessarily remains at the level of case law, doctrine, and scholarship. Such an assessment would be unlikely to penetrate into the daily functioning of law in courts and law offices. Focusing upon case law, doctrine, and scholarship, let us assume that we have been impressed by a shift of focus or direction in post-revision cases arising from some new obligations regulation. We also have to decide upon the standards for measuring the change. Standards perforce vary in accordance with the vintage of a formulation, i.e. whether a particular locution, concept, or institution is new, on one hand, or modernized and updated on the other. Perhaps the revision aimed merely to streamline and sharpen a concept embodied in the original code articles; and for achievement of that aim, we might predict a minor shift in the direction of the jurisprudence. By contrast, for a newly introduced locution or concept, we would expect the post-revision jurisprudence to shift dramatically away from pre-revision jurisprudence. A new line of jurisprudence might begin to develop where none previously existed.
Lying midway between innovation and tradition, a third category is signaled by a comment that a regulation is new but does not change the law. Such comments typically identify newly formulated ideas that constitute continuities of traditional principles. For example, the revision used the neologisms "relative simulation" and "absolute simulation." These terms deviated from prior law, which typically evoked the term "simulation" without the modifiers--the doctrine and scholarship also disguised transfer simulations from non-transfer simulations. Though relative and absolute nullities also appeared in the pre-revision jurisprudence, (153) the specific neologisms "relative" simulation and "absolute" simulation did not.
At first sight, the neologisms may give a lawyer a sense of deja vu. Instinctively she is likely to believe that she understands the new regulation. Judging that the neologisms are not completely novel, she may work them into traditional categories of relative and absolute nullities. Deja vu may be at work here. Perhaps acceptance of these norms lies in the fact that they evoke original formulations embedded in mental habits. Whatever the reasons for their appeal, the fresh formulations must also be easy to recall because, like exhausted troops, the lawyers' memories of formulations in earlier codes will be sent packing, as their replacements go into immediate active service.
D. DIFFERENT TRAJECTORIES OF LEGAL IDEAS
It is a truism that legal ideas have different trajectories; this is predictable for denizens of different habitats, and the habitat influences a creature's coloring and adaptation. For example, an idea such as detrimental reliance, introduced into the Civil Code for the first time in 1984, can scarcely survive outside the courts; a plea of detrimental reliance is a trial lawyer's tactic for salvaging some value from a contract suffering from a possibly fatal flaw. This is consistent with a traditional plea of estoppel as an affirmative defense in the Code of Civil Procedure. (154) Some lawyers would embrace detrimental reliance as a last resort when other theories have failed. In contrast, cause dwells in every obligation, irrespective of whether it is judicially enforced. In a further contrast, some historically popular judicial ideas are now thought to be dead letters. This is so because they arise in controversies resolved by confidential arbitration proceedings. Judicial elaboration of many important issues has little chance to develop because parties are often sent to arbitration, a typically confidential and unreported process. Kept confidential by the arbitrator and the parties, key legal ideas linger in the shadows of controversies, making their impact difficult to assess.
A fourth category of intriguing legal ideas deserves to thrive, but it suffers from stunted judicial growth. Even assuming the parties litigate their dispute, some important ideas rarely crop up in reported cases. For example, simulations and counter letters are likely much more abundant in daily practice than the case law suggests. A supposed abundance of simulations in practice likely explains the reporter's appeal to practitioners for insights into these institutions. Furthermore, the institutions are difficult to coax into the open because the lawyers prefer settlement if a public hearing would cast a bright light upon their strategies for protecting clients. (155)
Despite these limitations and qualifications upon our inquiry, perhaps we can discover evidence suggesting the extent of the legal community's acceptance of particular concepts and formulations. Assuming a controversy ends in a published judgment, we can easily find in the Westlaw databases judicial interpretations of code provisions and even briefs based upon the provisions. The incidence of the Civil Code terms indicates their appeal in legal argument, but not whether the arguments were correctly made and understood.
E. RECEPTION OF OBLIQUE ACTION
Characteristics of the new regulation of the oblique action commend it is as a good candidate for assessing the penetration of the revision into the thinking of the legal community. The original code did not name the vestigial ancestor of the oblique action, lumping it instead with the revocatory action. Hence, the independent regulation of the oblique action represented an innovation. However, it also represented continuity because, by analogy, it expanded the narrowly tailored ancestor in original article 1985.
Newly introduced into the Louisiana regulation of both actions, a standard of insolvency was expected to overcome resistance to its novelty. Because the insolvency standard echoed an insolvency standard in bankruptcy cases, the bankruptcy bar and courts were expected to facilitate the acceptance of the oblique action. Furthermore, to foreclose unmeritorious invocation of the oblique action, the new regulation denied the action to a creditor if he sought to enforce a purely personal right belonging to the obligor. Linked by an analogy to new regulation of different kinds of obligations, this "purely personal" limitation continued a standard recognized in both French doctrine and the limited regulation of the action in the original Louisiana code.
Despite these reassuring features of the new regulation of the oblique action, the lawyers and courts did not race to embrace it. Though from 1984 the code mapped out the basic features of the oblique action, the ground remained terra incognita until the monuments located on the map were matched with those occurring in practice. Early invocations of the new regulation likely puzzled judges who found scant jurisprudential guidance for the oblique action other than occasional decisions dating back to the nineteenth century. (156) Such pre-revision decisions, following the formula of original article 1985, focused narrowly upon an insolvent debtor's inheritance and recognized her creditor's right to the inheritance if her insolvent debtor failed to accept it.
Once the oblique action underwent a christening in 1984, the lawyers and courts quickly began to exhibit interest in it. On several occasions the claimants, out of an abundance of caution, coupled the oblique action with other actions. Fairly characterized as good lawyering, this tactic made it difficult to assess the impact of the new regulation--for it now permitted the judges summarily to dismiss the oblique action as an afterthought and beyond the plaintiffs' central arguments.
Though intrigued by the action, some courts, predictably diffident toward its application, satisfied claims based upon other theories of action. In Taylor v. Babin, (157) a plaintiff asserted an oblique action. The demand was rejected, mainly because the cited instances of judicial consideration before codification of the oblique action were limited to the specific facts recited in prior civil code article 1985. (158)
Meanwhile, federal district court judges presiding in Louisiana, directed by established doctrine to apply state law to a broad spectrum of federal cases, charted their own paths in the terrain mapped by the oblique action. In 2007, for example, a United States district court rejected an oblique action on the basis that the plaintiff had not alleged defendant's insolvency, an indispensable element of the claim. (159)
The oblique action's most imaginative and rewarding development seems to have originated in the province of Louisiana's federal bankruptcy courts. The obligations committee turns out to have accurately foreseen that the substitution of an insolvency criterion for fraud for both the revocatory and oblique actions would facilitate their reception. The committee's conviction was prompted by recognition that debtor insolvency provided an interface between federal and state proceedings for creditor protection.
Bankruptcy courts devote considerable attention to both state and federal regulation of creditor protection. The revocatory action has long had great allure for bankruptcy courts, whose regular work includes liquidation and reorganization of debtor estates for the benefit of creditors. Hence, it made sense to the obligations revision committee to piggyback features of the oblique action upon the revocatory action. In In re Goldberg, a bankruptcy trustee's strong arm action to avoid a real estate purchase allegedly made when a debtor purchaser was already insolvent, brought a wealth of scholarly insights into the oblique action's companion revocatory action. (160) Starting with the Roman Paulian action, the court ranged over the history of creditor protections and the function of insolvency in current federal bankruptcy law. More than any other post-revision decision that I have personally encountered,
In re Goldberg has demonstrated the richness of foreign law for the evolution of Louisiana law.
The decision also hinted at our impoverishment if foreign law were excluded from judicial consideration. By dovetailing federal creditor avoidance actions with the state revocatory action, the court provided a scholarly inquiry evocative of judgments rendered by the early United States Supreme Court long before the current Supreme Court exhibited allergies to foreign law. The court's opinion was also evocative of early Louisiana decisions anchored securely in comparative methods. (161)
Though In re Goldberg concentrated upon the revocatory action, its analysis of the insolvency criterion and role of bankruptcy law in creditor actions apply equally to the oblique action. The court also described the legislative reasoning lying behind the revision of 1984:
The law pertaining to the protection of creditors from the unjust deprivation of their rights through contracts made by their debtors was in dire need of reform. The articles of the 1870 code ... were unduly complex and lacked necessary threads of consistency. Many ... provisions were not useful in a modern setting, and federal bankruptcy law [which normally preempts state law in case of conflict between them] had made many of the provisions obsolete. The provisions of the 1870 Code on the giving of unfair preference to one of several creditors ... fell within the scope of federal law. The basic principle established in the revision is that an obligee has the right to annul the results of the obligor's acts or omissions, made or effected after the right of the obligee arose, that cause or increase the obligor's insolvency. This principle substitutes the concept of an act of the obligor that causes or increases his insolvency or gives undue preference to another obligee, for the notion of an act in "fraud" of creditors. As used in the source articles, the word "fraud" was a technical term that did not necessarily connote bad faith. Furthermore, it had a highly subjective meaning. Through the above ... situation, the test for availability of the revocatory action has been made an objective one; that is, whether or not prejudice to the obligee's right has been caused by the obligor's act. This criterion permits revocation of an obligor's act even if it is not done intentionally but through negligence. (162)
This excursion into the recent evolution of revocatory and oblique actions likely renders anti-climactic the jurisprudential reception of other parts of the revision. One senses that many of the revisions, sparking the lawyers' sense of deja vu, landed in their tool boxes without comment. For example, the suppletive provision in article 2602 has been quoted in passing without judicial comment. (163) The innovative change of terminology in current article 1761 (contract to perform natural obligation is onerous) has been embraced as though it were deja vu. (164) Article 1921's principle of restitution after rescission has provided guidance for restitutionary relief in a variety of circumstances. (165) Without explicit reference to current Civil Code article 1921, its restitutionary principle has been linked imaginatively to a plaintiffs recovery of benefits in a redhibitory action. (166) In the department of imputation of payment, federal and state courts have contributed to an elegant and highly granular case law that would repay close analysis. Without noting deficiencies in the original regulation, the courts seem cheerfully to embrace the priority scheme in the articles. Comments accompanying the tender and deposit articles have prompted the courts to recognize the liberative effects of a tender provided it is accompanied by a payment or a deposit of the object. (167)
F. RELATIVE AND ABSOLUTE SIMULATIONS?
Simulations have enjoyed a long career in Louisiana jurisprudence. Allowing leeway for false positives for the word simulation as denoting a facsimile, an imitation, or a product trial under man-made circumstances, perhaps over a thousand pre-1984 decisions used the term simulation as a legal term of art. I have not found any pre-revision references to relative and absolute simulations, although in various guises the cognate non-transfer and transfer simulations surely have figured in the jurisprudence, (168) Interestingly, the leading Louisiana real estate treatise tersely describes absolute and relative simulations without suggesting a change in the law. (169) But it may be unwise to ask the lawyers and judges to evaluate changes that have gone unnoticed for about thirty years. A prudent lawyer, having noticed such a change, may have excluded it from his opinion letter regarding a specific transaction. But we can only guess at these circumstances, for the opinion letter, and its accompanying research, would be confidential communications for parties to the transaction.
V. CONCLUSION--CODA: PREACHING GOOD NEWS
Readers, whether devotees of the Civil Code or inquisitive bystanders, will by now have appreciated the essential points of this essay. Mystified by intensive exploration of foreign sources as inspirations for a law nominally classified as a United States statute, our audience outside the mentioned categories will likely have quit reading long before now. This fragmentation of the audience into initiates and outsiders is linked to the Code's challenge as it struggles to be understood by a self-absorbed American legal establishment uninterested in foreign legal heritages. The code's challenge also highlights the incoherence of the American lawyer's indifference. At all educational levels, enfeebled foreign language instruction combines with some United States Supreme Court justices' avowed hostility to the citation of foreign law to reinforce our insularity. (170) But it ironically co-exists alongside a veritable national industry dedicated to exporting American legal ideas and financial practices around the globe. One wonders how a recipient nation would react to these phenomena upon learning that the proposed exchange of laws is unidirectional, not reciprocal. For the Civil Code, the incoherence of the American position also has repercussions; the code revision offers an English language repository of insights into the experience of civil law concepts in collision with twentieth century civilian experience and American law.
The reciprocal influences between the Louisiana code and laws of other nations are old news. This point is already clear for initiates who constitute a choir of devotees. Yet behind the choir there looms a large United States audience nearly impervious to the good news of a kindred heritage and a sister state.
(1.) The recently adopted Quebec Civil Code, for instance, has been very influential on Louisiana's jurisprudence. See, e.g., Civil Code of Quebec, S.Q. 1991 (Can.).
(2.) For arguments that the French Civil Code was a kind of secular scripture, see Shael Herman, From Philosophers to Legislators and Legislators to Gods: The French Civil Code as Secular Scripture, 84 ILL. L. REV. 612 (1984).
(3.) See infra note 8.
(4.) On the role of "situation sense" in Llewellyn's thinking, see John L. Gedid, U.C.C. Methodology: Taking a Realistic Look at the Code, 29 WM. & MARY L. REV. 341, 369-70 (1988). Llewellyn frequently tried to explain situation sense. Yet, the idea seems usually to have been mysteriously suspended between conceptuafism and instrumentalism. In the Common Law Tradition, he defined situation sense as "type facts in their context and at the same time in their pressure for a satisfying working result." KARL LLEWELLYN, COMMON LAW TRADITION: DECIDING APPEALS 60 (1960). See also Todd Rakoff, Social Structure, Legal Structure, and Default Rules: A Comment, 3 S. CAL. INTERDISC. L.J. 19, 22 (1993); Todd Rakoff, Implied Terms of Contracts: Of "Default Rules" and "Situation Sense," in GOOD FAITH AND FAULT IN CONTRACT LAW 191, 208 (Jack Beatson & Daniel Friedmann eds., 1995). Many solutions based upon situation sense seem self-evident now, but the bench and the bar resisted them when they were proposed. For the first sixty years of the twentieth century, contract theory was virtually married to the mirror image rule for offer and acceptance, and lawyers questioned a principle of contract formation that salvaged agreements by discounting inconsistent terms or filling in the terms from a standardized category of gapfillers.
(5.) HARRY AUSTRYN WOLFSON, THE PHILOSOPHY OF THE KALAM: THE STRUCTURE AND GROWTH OF PHILOSOPHIC SYSTEMS FROM PLATO TO SPINOZA 355 (1976) (defining "ex nihilo" as meaning "from nothing," a term frequently associated with theological arguments about the time before the world's creation).
(6.) The nature of the transformation is revealed in direct comparisons of former Civil Code articles with new ones. A reader familiar with the Civil Code's former regulation of the vices of consent will appreciate the compression of the vices of consent in current Louisiana Civil Code article 1948: "Consent may be vitiated by error, fraud, or duress." LA. CIV. CODE ANN. art. 1948 (2012). The reader will likely appreciate the lapidary formulation of current Louisiana Civil Code article 1949, which links the theme of cause implicit in the former regulation with error: "Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party." Id. art. 1949. For a sketch of the transformation of the regulation of consent in the revision of 1984, see Shael Herman, Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's The Louisiana Civilian Experience-Critiques of Codification in a Mixed Jurisdiction, 80 TUL. L. REV. 1491, 1535 (2006) [hereinafter Herman, Under My Wings]. Hereafter, "current" or "new" designates the Civil Code revision of obligations, 1984. Unless otherwise indicated, the label "old" or "former" designates provisions of the Louisiana Civil Code (1870), LA. CIV. CODE (1870), available at http://books.google.com/books?id=ZtsXAAAAYAAJ&printsec=frontcover&source=gbs _ge_summary r&cad=0#v=onepage&q&f=false.
(7.) On the absorption of foreign influences into the revision of the Louisiana Civil Code, see generally Agustin Parise, A Constant Give and Take: Tracing Legal Borrowings in the Louisiana Civil Law Experience, 35 SETON HALL LEGIS. J. 1 (2010)..
(8.) The scope of Litvinoffs continental scholarship was demonstrable from his accurate citation, from memory, of provisions of foreign codes. However, this was not surprising, as he came to class without notes or a textbook and could hold forth without lapse for hours. His scholarship ranged widely over Roman law, French law, German law and American law. See generally Saul Litvinoff, Force Majeure, Failure of Cause and Theorie de l'Imprevision: Louisiana Law and Beyond, 46 LA. L. REV. 1 (1985). It is regrettable, as I suggest in this essay, that he did not speak more openly about the Argentine influences on the code revision.
(9.) For further discussion of this characteristic of the legal community, see generally Kenneth McNorrie, The Legal Regulation of Adult Domestic Relationships, in MIXED JURISDICTIONS COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 164-71 (V. Palmer & E. Reid eds., 2009).
(10.) See, e.g., Minyard v. Curtis Products, Inc., 205 So. 2d 422 (La. 1967) (for a consideration of the Louisiana (i.e. non-American) unjust enrichment action, the action de in rem verso). Once the case law had developed the action, some judges seized the opportunity to discover the action's roots in French law. See, e.g., Albert Tate, Jr., The Louisiana Action for Unjustified Enrichment: A Study in Judicial Process, 50 TUL. L. REV. 883 (1976). See also Ducote v. Oden, 59 So. 2d 130 (La. 1952), in which the Louisiana Supreme Court rejected a claim of promissory estoppel on the basis that it had no place in Louisiana Law. This rejection betrayed a certain judicial myopia because estoppel in many forms was early entrenched in Louisiana law, and some of these forms, i.e. estoppel by deed, closely resembled promissory estoppel. I wrote chidingly in 1984 that "to the extent that the judges have seen detrimental reliance as a 'foreign importation,' they have occasionally rejected it on a doctrinaire basis without fully exploring its practical utility." Shael Herman, Detrimental Reliance in Louisiana Law--Past, Present, and Future (?): The Code Drafter's Prespective, 58 TUL. L. REV. 707, 715, 744-50 (1984) [hereinafter Herman, Detrimental Reliance in Louisiana Law]. Among Louisiana lawyers, a countervailing impulse may also prompt them to understate their pride in their own law; if, for example, Louisiana legislation deviates too dramatically from constitutional norms, it may be stricken as unconstitutional. In Kirchberg v. Feenstra, 450 U.S. 455 (1981), the United States Supreme Court blocked a mortgage foreclosure on the ground that the head and master provision of the Louisiana Civil Code offended the equal protection clause.
(11.) While we are unlikely to find judicial opinions advertising this incompetence currently present in the bar, the foreign language incompetence is generalized across society. For instance, after the terrorist attacks of 9/11, a committee of the Modern Language Association assumed the task of assessing a crisis in foreign language learning in the U.S. Said the committee:
In fulfilling [the] charge, the committee found itself immersed in a dynamic, rapidly changing environment marked by a sense of crisis around what came to be called the nation's language deficit. The United States' inability to communicate with or comprehend other parts of the world became a prominent subject for journalists, as language failures of all kinds plagued the United States' military interventions in Afghanistan and Iraq and its efforts to suppress terrorism. The lack of foreign language competence is as much a fact within academic disciplines as in the society at large. According to a recent MLA survey, only half of the 118 existing Ph.D. programs in English require reading knowledge of two additional languages. At the graduate level, language requirements are notoriously under-enforced across the humanities and the social sciences. Citation indexes reveal a steady decrease in the use of non-English sources in research across the humanities and social sciences, a deficiency that impoverishes intellectual debate. Four-year language majors often graduate with disappointingly low levels of linguistic ability. Opportunities to study abroad and to do course work in the target language are eroding in favor of short-term study in which courses are in English. In addition, the need to work prevents many students from studying abroad at all.
See MODERN LANGUAGE ASS'N, FOREIGN LANGUAGES AND HIGHER EDUCATION: NEW STRUCTURES FOR A CHANGED WORLD, (May 2007), available at http://www.mla.org/pdf/forlang_news_pdf.pdf (internal citations omitted). Louisiana lawyers are as incompetent in foreign languages as their counterparts elsewhere in the U.S. The deficit in foreign languages is a national disgrace. No law school in the U.S., so far as I am aware, requires proficiency in a foreign language even if it advertises itself as a great international mecca. Furthermore, of all the books published in the U.S. in a given year, less than 3% are translations. See Three Percent: A Resource for International Literature at the University of Rochester, UNIVERSITY OF ROCHESTER, http://www.rochester.edu/College/translation/threepercent/index.php?s=about (last visited Dec. 23, 2012). Our bench and bar are woefully isolated from other legal systems, and they seem unaware of the condition. Some justices of the Supreme Court have aggravated the situation by condemning colleagues whose opinions refer to foreign legal sources.
(12.) DANTE'S INFERNO, canto I, 11.1-2 (Mark Musa trans., Indiana Univ. Press 1971) ("Nel mezzo del cammin di nostra vita mi ritrovai per una selva oscura, chela diritta via era smarrita.") ("Midway on life's journey, I found myself/In dark woods, the right road lost.").
(13.) In contrasting the two spheres, one should recall that "law in action" and "law in the books" have a multitude of connotations and a complex ancestry traceable to German sociology. Deriving from Max Weber's sociological theories, law in action is law as enforced by officialdom of the bureaucratic state. The contrast between the two spheres highlighted law as observable behavior on the part of actors in the legal community, on one hand, and law as intended meaning, rules, ideals, norms, and doctrinal reasoning on the other. The science of law in action, according to legal realists such as Karl Llewellyn, had to be a social science, not an abstract discipline.
Michael Ansaldi, The German Llewellyn, 58 BROOK. L. REV. 705, 750 (1992).
(14.) Path dependence may be defined as the phenomenon of one's future decisions on any particular problem as being limited by those she has already made, even though past circumstances giving rise to the decision are no longer relevant. A good example of path dependence is the entrenchment of the QWERTY typing layout, which now seems frozen in place. See John Bell, Path Dependence and Legal Development, 87 TUL. L. REV. (forthcoming Spring 2013).
(15.) "The more things change, the more they remain the same." JEAN BAPTISTE ALPHONSE KARR, LES GUEPES (1849).
(16.) See infra text accompanying notes 70-74..
(17.) For example, article 1805 of the Louisiana Civil Code of 1870 followed the mirror image rule of offers and acceptances: "The acceptance to form a contract must be in all things conformable to the offer: any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it." LA. CIV. CODE art. 1805 (1870). The principle of previous article 1805 inspired article 1943 in the revision. "An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer." LA. CIV. CODE ANN. art. 1943 (2012). The revision of sales regulation deviated from the mirror image rule, adapting instead a UCC pattern for contracting by an exchange of documentary forms. See discussion infra notes 137-40 and accompanying text.
(18.) This is inevitable because, first, many Louisiana lawyers earned their degrees elsewhere in the U.S., or even abroad; as such, they never had any Louisiana code courses in school. Secondly, many law students in the Louisiana law schools no longer take code courses, and just sit for the bar exam after a bar cram course, which is not a substitute for regular code courses.
In contrast, Edward Livingston, a close confidant of President Jefferson and a prominent New York political figure, left New York with creditors in pursuit. He settled in Louisiana before 1812, the date of its statehood. Trained for the New York bar, Livingston also studied civil law systematically in France when he represented the young American republic and witnessed the incipient French revolution. Livingston's impressive command of both French law and the common law is sketched in Herman, Under My Wings, supra note 6, at 1513-15; Shael Herman, The Louisiana Code of Practice (1825): A Civilian Essai Among Anglo American Sources, 23 TUL. EUR. & CIV. L.F. 51 (2008); Shael Herman, The Code of Practice (1825): The Adaptation of Common Law Institutions, 24 TUL. EUR. & CIV. L.F. 207 (2009).
(19.) This bijurality seems definitional for mixed jurisdictions, and especially those like Louisiana, in which both civil and common law institutions co-exist in an English-language lexicon. The bijurality is reflected in current Civil Code article 1967, a codification of cause enhanced by a principle of detrimental reliance. The comments to article 1967 and those accompanying the current regulation of consent display this bijurality. For scholarship on detrimental reliance in Louisiana law, see annotations of law review articles and cases accompanying LA. CIV. CODE ANN. art. 1967 (2012).
(20.) LA. CIV. CODE ANN. art. 1921 (2012). For a sketch of restitutionary relief within a hierarchy of remedies, see 6 LA. CIV. L. TREATISE, LAW OF OBLIGATIONS [section]16.3 (2d ed. 2011). For links between detrimental reliance and restitutionary relief, see Herman, Detrimental Reliance in Louisiana Law, supra note 10.
(21.) See LA. CIV. CODE. art. 1921 cmt. (1984) (citing Israeli Contracts Law art. 9(a) (1970)).
(22.) See Gabriela Shalev & Shael Herman, A Source Study of Israel's Contract Codification, 35 LA. L. REV. 1091, 1113 (1975) (discussing the provision). The restitutionary principle in the quoted provision was complemented by a more recent provision in Israel's draft code. That rule provides:
[W]here a contract has been rescinded due to its breach, each party must restore to the other party whatever he received pursuant to the contract, and if restitution in kind is impossible or unreasonable--to pay him the value of what he received. (emphasis added).
At the risk of venturing beyond my expertise, it is worth noting that restitution in integrum (in kind), as contemplated in the just quoted Israeli article, may sometimes be inappropriate when a party's breach is a basis for the rescission. Both federal courts and Louisiana courts would rely on a party's breach to justify denying her recovery of part or all of the value of her performance. In contrast, the innocent victim of the other party's breach might recover the full value of her performance. In my opinion, denial of restitution does not loom large in the application of Louisiana Civil Code article 1921 because the provision contemplates annulment of the contract based upon a party's incapacity, not her breach, as contemplated in the Israeli provision. The latter event routinely involves an assessment of fault while the former should not.
(23.) RENE DAVID, CODE CIVIL DE L'EMPIRE D'ETHIOPIE DE 1960 (Librairie Generale de Droit et de Jurisprudence, 1962).
(24.) See, e.g., LA. CIV. CODE ANN. art. 1842 cmt. b (2012); LA. CIV. CODE ANN. arts. 3006, 3011, 3015 (2012) (demonstrating that French influences are pervasive).
(25.) See, e.g., ESSAYS ON THE CIVIL LAW OF OBLIGATIONS (Joseph Dainow ed., 1970) (offering a collection of papers presented by Quebec and Louisiana scholars at an L.S.U. symposium in the late 1960s); see also Junij Fedynskyj, The Role of Judicial Decisions and Doctrine in Civil Law and Mixed Jurisdictions, 50 IND. L.J. 3 (1974).
(26.) For the communications of a joint Quebec-Louisiana meeting, see Donald R. Mintz, Essays on the Civil Law of Obligations, 45 TUL. L. REV. 450 (1969). In November 1991, the Canadian Institute for Advanced Legal Studies sponsored a bilateral conference titled "Codification in North America," on the eve of the enactment of the new Quebec Civil Code. For papers presented at the meeting, see Shael Herman, Minor Risks and Major Rewards: Civilian Codification in North America on the Eve of the Twenty-First Century, 8 TUL. EUR. & CIV. L.F. 63 (1993); Thomas B. Lemann, Trust: A Common Law Institution in a Civilian Context, 8 TUL. EUR. & CIV. L.F. 53 (1993).
(27.) THE ARGENTINE CIVIL CODE (Phanor J. Eder, Robert J. Kerr, & Joseph Wheless eds., Frank L. Joannini trans., 1917), available at www.archive.org/details/argentinecivilc00whelgoog. For an up-to-date translation of the Argentine Civil Code, see CIVIL CODE OF ARGENTINA (Julio Romanach, Jr., trans., Lawrence Pub. Co., 2d ed. 2008). Professor Litvinoffs treatises do not betray the deep imprint of Argentine law that I have argued for here. His treatises refer to Argentine law about a dozen times. See generally 5, 6 LA. CIV. LAW TREATISE, LAW OF OBLIGATIONS (2d ed. 2011). Over many decades, Professor Litvinoff kept abreast of developments in Argentine law through personal study as well as a stream of visiting professors, including Julio Cueto-Rua, and graduate students who subsequently became academics (such as Alejandro Garro (Columbia) and Agustin Parise (Maastricht)). For Litvinoffs stature in the legal community, see Agustin Parise & Julio Romanach, Don Saul Litvinoff (1925-2010), 3 J. CIV. L. STUD. 17 (2010). For Litvinoffs personal reminiscences, see Julie Baxter, Peppercorns & Poetry: A Conversation with Professor Saul Litvinoff, 1 LSU L. MAG. 24 (2007). I thank Professor Agustin Parise of the Maastricht Law Faculty for having brought these pieces to my attention. For a collection on Professor Litvinoff and his scholarship, see also ESSAYS IN HONOR OF SAUL LITVINOFF (Olivier Moreteau, Julio Romanach, Jr., & Alberto Zuppi eds., 2008).
(28.) For the influence of the nineteenth century Louisiana Civil Code upon the Argentine Civil Code, see Rolf Knutel, Influences of the Louisiana Civil Code in Latin America, 70 TUL. L. REV. 1445, 1462-67 (1996). Professor Knutel has identified ninety-five Louisiana code articles that supplied inspiration for the Argentine Civil Code. For an extensive and more recent exploration of Louisiana code influences upon the Argentine Code, see Parise, supra note 7. Were the focus of our inquiry the revision of property law carried out by Professor A. N. Yiannopoulos, much inspiration would be found in the reporter's first code, the Greek Civil Code and, more remotely, the German Civil Code (Buergerliches Gesetzbuch), a source of the Greek Code's foundations. Professor Yiannopoulos's multi-volume property treatise and his law review articles frequently supplied the running commentary for the property revision. See A. N. Yiannopoulos, The Hellenic Legal Tradition in the United States, 42 LOY. L. REV. 1, 8 (1996); Vernon Palmer, The French Connection and the Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana Civil Law, 63 LA. L. REV. 1067, 1114 n.138 (2003) (eighty-six Louisiana code articles reflect Greek inspiration).
(29.) See generally Parise, supra note 7; Rolf Knutel, Influences of the Louisiana Civil Code in Latin America, 70 TUL. L. REV. 1445 (1996); Agustin Parise, Codification of the Law in Louisiana: Early Nineteenth Century Oscillation Between Continental European and Common Law Systems, 27 TUL. EUR. & CIV. L.F. 133, 136 (2012).
(30.) LA. CIV. CODE art. 1757 (2) (1870).
(31.) COD. CIV. art. 549 (1871).
(32.) LA. CIV. CODE art. 1759 (1870).
(33.) COD. CIV. art. 550 (1871).
(34.) LA. CIV. CODE ANN. art. 1761 (2012) (emphasis added).
(35.) Id. art. 1761 cmt. b.
(36.) LA. CIV. CODE art. 1759 (1870).
(37.) For English sources linking cause and consideration, see A.W. BRIAN SIMPSON, A HISTORY OF THE COMMON LAW OF CONTRACTS: THE RISE OF THE ACTION OF ASSUMPSIT 384-86 (1975). Interpretations of the doctrine of cause vary, and they have been the subject of a vast literature. Among leading French works consulted for the Louisiana revision of obligations, see H. CAPITANT, DE LA CAUSE DES OBLIGATIONS (3d ed. 1927) and G. CHEVRIER, ESSAI SUR L'HISTOIRE DE LA CAUSE DANS LES OBLIGATIONS (1929). The most comprehensive work for Louisiana lawyers is 6 LA. CIV. L. TREATISE (1969); Saul Litvinoff, Still Another Look at Cause, 48 LA. L. REV. 3 (1987). In addition to J. Denson Smith, A Refresher Course in Cause, 12 LA. L. REV. 2 (1951), the reporter consulted other valuable articles in English. Among them are Ernest G. Lorenzen, Causa and Consideration in the Law of Contracts, 28 YALE L.J. 621 (1919); B.S. Markesinis, Cause and Consideration: A Study in Parallel, 37 CAMBRIDGE L.J. 53 (1978); Malcolm S. Mason, The Utility of Consideration-A Comparative View, 41 COLUM. L. REV. 825 (1941); Arthur T. Von Mehren, Civil Law Analogues to Consideration, 72 HARV. L. REV. 1009, 1024-26 (1959). For discussion of cause and consideration in the context of the obligations revision of 1984, see generally Herman, Detrimental Reliance in Louisiana Law, supra note 10.
(38.) LA. CIV. CODEANN. art. 1761 cmt. d (2012).
(39.) See generally Herman, Detrimental Reliance in Louisiana Law, supra note 10, at 716-21.
(40.) See id. (sketching these features of contracts and donations). This essay originated as a research project for the advisory committee on the obligations revision. By the time that the entire revision was ready for legislative consideration and despite the paradoxical coupling of cause with detrimental reliance, Professor Litvinoff and the committee had become convinced that incorporation of detrimental reliance would be salutary because the legal community had long experience with the doctrine in many forms and contexts. For example, it figured in a developed doctrine of estoppel in both substantive and procedural law. See, e.g., LA. CODE CIV. PROC. ANN. art. 1005 (2012). The published essay justified the codification of detrimental reliance and regarded as manageable the difficulties associated with its codification.
(41.) This assumption is implicit in the concept of consideration as a benefit for the promisor or a detriment for the promisee. The detriment or benefit is assumed to result from bargaining between the parties. Hence, a donation falls outside the definition of contract because one party, the donor, has conferred a benefit upon the donee, but the donee does not have to bargain for a sacrifice on his part. For the contrasts between cause and consideration, see Lorenzen, supra note 37. The assumptions about consideration gave rise to the case of Hamer v Sidway, 124 N.Y. 538 (1891), wherein an uncle promised his nephew a sum if the nephew would stop smoking and otherwise act dissolutely.
(42.) Perhaps the most important contribution of the legal realists was to have shown that legal concepts were not purely logical constructs, but rather were responsive to moral and political discourse. More than classical jurisprudence, legal realism was interested in interactions between the real world and legal principles. Yishai Blank, Symposium: The Future of Legal Theory: Essay and Comment: The Reenchantment of Law, 96 CORNELL L. REV. 633, 643-44 (2011).
(43.) For example, federal bankruptcy regulation of fraud overtook the code's counterpart regulation. See e.g., In re Lawrence Goldberg, 277 B. R. 251 (M. D. La. 2002).
(44.) See Herman, Detrimental Reliance in Louisiana Law, supra note 10, at 717-720.
(45.) This discussion is characteristic of discussion among the reporter and members of the revision committee. Typically, the committee, in an effort to be systematic, sought to identify the most likely and least likely circumstances that the revised regulation should affect. Before computerized research bases, counting cases would have been time consuming, so the committee relied generally upon collective experiences, sometimes recorded in the archives of the Louisiana State Law Institute.
(46.) LA. CIV. CODE art. 2166 (1870) (emphasis added).
(47.) LA. CIV. CODE ANN. art. 1868 (2012) (emphasis added).
(48.) Id. art. 1868 cmt. a.
(49.) COD. CIV. art. 812 (1871).
(50.) The term "formal realizability" is shorthand for a judicial practice of determining applicability of a rule based on the presence of objective criteria. For discussion of the term, see Shael Herman, Minor Risks and Major Rewards: Civilian Codification in North America On the Eve of the Twenty-First Century, 8 TUL. EUR. & CIV. L. F. 63, 70-74 (1993) (quoting RUDOLPH VON JHERING, GEIST DES ROEMISCHEN RECHTS AUF DEN VERSCHIEDEN STUFEN SEINER ENTWICKLUNG (1906)).
(51.) C.C. art. 1193 (1942), available at host.law.lsu.edu/ahclouisiane/documents/CivilCodes.pdf.
(52.) The Italian formulation has remained durable for code drafters. In Giuseppe Gandolfi's draft code, the subjective standard is expressed as "does not help" (Italian: se tale criteri non soccorrono). Article 84 (3) states:
If neither the debtor nor the creditor have expressed an imputation, the payment shall be imputed to the matured debt; among several matured debts, to that which has least security; among equally secured debts, to the one which is most burdensome to the debtor; among equally onerous debts to the oldest, if these criteria do not help, imputation is made proportionally to the various debts.
1 EUR. CONT. CODE 545-46 (2004) (on file with author).
(53.) LA. CIV. CODEANN. art. 1869 (2012).
(54.) The French Civil Code regulated both movables and immovables, and the Louisiana Code followed the French pattern. Most articles in the code regulation of sales affected rights in immovables, but they were presumed to regulate movable transactions as well, unless the context of a rule indicated otherwise. This argument is confirmed in the quotation at note 143, which clearly contemplates sales of movables.
(55.) 1 LA. PRAC. REAL EST. [section] 9:93 (2d ed. 2011) (discussing tender of performance and putting into default). In immovable transactions, both a seller's tender of title and his purchaser's correlative tender of the price were informed by a salutary policy of facilitating the parties' ongoing communications over the course of their contract, and post performance even when due process does not dictate such communications.
(56.) LA. CIV. CODE art. 2163 (1870).
(57.) LA. CIV. CODEANN. art. 1869 cmt. f (2012).
(58.) LA. CIV. CODE ANN. art. 1869 (2012).
(59.) Id. art. 1869 cmt. a.
(61.) COD. CIV. art. 792 (1871).
(62.) LA. CIV. CODE ANN. art. 1869 cmt. c (2012).
(63.) Many of Litvinoff's law review pieces analyzed jurisprudence interpreting themes in the civil code, set the themes in context of both foreign and Louisiana doctrine, and suggested improvements of existing code regulation. Possible structures for the code revision were analyzed in Herman & Hoskins, infra note 129.
(64.) LA. CIV. CODEANN. art. 1869 cmt. b (2012).
(65.) LA. CIV. CODE art. 1990 (1870):
In case the debtor refuse or neglect to accept an inheritance to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for in the title of successions and they are authorized [to] ... exercise all of the rights existing in favor of the debtor for recovering possession of the property to which he is entitled ... to make the same available to the payment of their debts.
(66.) See infra notes 84-89 and accompanying text.
(67.) C. CIV. arts. 1166-67 (Fr.).
(68.) C. CIV. art. 1166 (Fr.) (stating that "creditors may exercise all the rights and actions of their debtor, except those that are exclusively personal." (Author's translation).
(69.) See infra text accompanying notes 75-83.
(70.) See LA. CIV. CODE. ANN. arts. 1970-94 (2012).
(71.) See infra note 162 (quoting In Re Goldberg, 277 B. R. 251 (M.D. La. 2002)).
(72.) 11 U.S.C. [section] 548 (ii) (1) (2005) (discussing criteria for setting aside debtor's transfer; e.g. if fraud was actual or constructive; the transfer was made for inadequate consideration, especially if debtor was insolvent at time of transfer; or the transfer had made him insolvent; or the debtor was engaged in a business with unreasonably small capital, or the debtor intended to incur debts that would be beyond its ability to repay). See Westlaw database: Fr-Transfers 4:14.
(73.) LA. CIV. CODE ANN. art. 2036 (2012).
(74.) In re Lawrence Goldberg, 277 B. R. 251 (M. D. La. 2002).
(75.) LA. CIV. CODE art. 1985 (1870).
(76.) Id. art. 1991. For an illustration of the principle of the article, see Succession of Henican, 248 So. 2d 385 (La. Ct. App. 1971).
(77.) The following illustrates typical pre-revision judicial reaction to an assertion of the oblique action: "We are not persuaded to employ this action expressly and intentionally omitted from the Code of 1825 and used only a few times in our jurisprudential history." North Forest Homeowners' Ass'n, et al. v. Homecraft Corp. et al., 407 So. 2d 450, 454 (La. App. 1 Cir. 1981). I am grateful to Mr. Gregory Grimsal, for having called this opinion to my attention.
(78.) Gregory Grimsal, The Oblique Action, 54 TUL. L. REV. 699 (1980).
(79.) LA. CIV. CODE. ANN. art. 2044 (2012).
(80.) Id. art. 2044 cmt. a.
(81.) COD. CIV. art. 998 (1871).
(82.) "There are also rights which are merely personal, that cannot be made liable to the payment of debts.... " LA. CIV. CODE art. 1992 (1870).
(83.) COD. CIV. art. 1003 (1871).
(84.) This conclusion is implicit in the Expose des Motifs for the obligations revision. According to that source, "the revised articles change the law pertaining to situations involving security." LA. CIV. CODE ANN. Bk. III, tit. IV (discussing conditional obligations). Concededly, the expose could have stated crisply that a new regulation was being introduced, but the obligations committee resisted highlighting legislative novelties.
(85.) LA. CIV. CODEANN. art. 1771 (2012).
(86.) LA. CIV. CODE ANN. art. 1783 (2012).
(88.) Id. art. 1783 cmt. e.
(89.) See U.C.C. [section] 2-609 (2012), stating that:
A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.
(90.) U.N. Convention on Contracts for the Int'l Sale of Goods (CISG), Apr. 11, 1980, 19 L. L. M. 668.
(92.) LA. CIV. CODE ANN. bk. III, tit. VII (2012).
(93.) U. N. Convention on Contracts for the Int'l Sale of Goods (CISG), Apr. 11, 1980, 19 I. L. M. 668, art. 71.
(94.) Compare COD. CIV. art. 580 (1871), with LA. CIV. CODE ANN. art. 1771 and art. 1783 (2012).
(95.) Two of the finest practitioners who generously shared their wisdom and experience with colleagues were Joseph Bologna, long a professor of real estate at Loyola, and his counterpart at Tulane, Leonard Rosenson, my mentor in practice thirty-five years ago. Cicero Sessions, a master of procedural law, for many years was known as a coach for newly appointed federal judges.
(96.) LA. CIV. CODE ANN. art. 2025 cmt. b (2012).
(97.) On nominate and innominate contracts in Louisiana jurisprudence, see generally Herman, Detrimental Reliance in Louisiana Law, supra note 10, at 728-32.
(98.) See, e.g., LA. CIV. CODE ANN. art. 2026 cmt. a (2012); id. art. 2027 cmt. a.
(99.) See supra note 96.
(100.) LA. CIV. CODE. ANN. art. 2025 cmt. b (2012).
(101.) This is the consistent opinion of the jurisprudence. See, e.g.,
Matter of Zedda, 103 F.3d 1195 (5th Cir. 1997) (stating that "[s]imulations are not uncommon in Louisiana; neither does their use imply anything negative or untoward"). Id. at 1195. See also Ronald Scalise, Counter Letter Committee Report for the Louisiana State Law Institute, March 13, 2009 (on file with author) (offering a recent treatment of simulations and counter letters).
Among practitioners, simulations and counter letters have many licit uses and likely turn up in every commercial law firm in Louisiana. Several wealthy prospective buyers, for example, wishing to negotiate an attractive price with owners of a tract, but, fearing that the owner would make unreasonable demands if their identities were disclosed, delegate to a trusted colleague of humble means but sterling credit the task of acquiring a tract for development. The wealthy purchasers deposit the purchase price into her bank account. Once the delegate has negotiated a reasonable price, the wealthy buyers deposit their respective shares of the price into the delegate's checking account, along with incidental closing fees. The delegate takes title to the tract in her own name, and the owners receive the price. The owners do not know the names of the actual owners. The delegate issues counter letters in favor of the wealthy purchasers that acknowledge their percentage interests in the tract; the counter letters covenant to transfer title to them at their request. In practice, the doctrine recognizes the recordation of the counter letter itself as the act of transfer without the delegate having to execute a new authentic act. Popular throughout the United States in other guises, a simulation may also be employed by parties who do not want to state on the public record the price paid for a tract, or perhaps other terms of their transaction. The recorded act states a different price, and their counter letter (or side letter, as it is sometimes labeled) acknowledges the true price.
(102.) LA. CIV. CODE ANN. art. 2464 (2012).
(103.) LA. CIV. CODE art. 2444 (1870).
(104.) LA. CIV. CODE ANN. art. 2444 (2012).
(105.) These institutions appeared in the Louisiana Digest of 1808 four years before Louisiana statehood. See Scalise, supra note 101.
(106.) Simulation is a contract, which "by mutual agreement, it does not express the true intent of the parties." LA. CIV. CODE ANN. art. 2025 (2012). "A simulation is absolute when the parties intend that their contract shall produce no effects between them." Id. art. 2026. "An example of absolute simulation is an act whereby the parties make an apparent sale when they actually intend that the vendor will remain owner." Id. art. 2026, cmt. a.
(107.) LA. CIV. CODE ANN. art. 2026 cmt. c (2012).
(108.) See id. art. 1914.
(109.) Id. art. 2439 ("Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are the requirements for the perfection of the sale.").
(110.) LA. CIV. CODE ANN. art. 1914 (2012); id. art. 2464.
(111.) Id. arts. 2036-38.
(112.) See Succession of Clark, 155 So. 2d 37, 39-41 (La. Ct. App. 1963).
(113.) "When the thing sold remains in the corporeal possession of the seller the sale is presumed to be a simulation, and, where the interest of heirs and creditors of the seller is concerned, the parties must show that their contract is not a simulation." LA. CIV. CODE ANN. art. 2480 (2012).
(114.) Among Louisiana real estate lawyers, this practice is fairly well known, but it would be highly unusual for the documents to declare their intention clearly. On the contrary, the lawyers and parties generally go through the charade, and a witness would not know it was a charade.
(115.) Louisiana Civil Code article 1493 (as amended in 1989) states: "Forced heirs are descendants of the first degree who have not attained the age of twenty-three years of any age who, or because of mental incapacity or physical infirmity are incapable of taking care of their persons or administering their estates." LA. CIV. CODE ANN. art. 1493 (1989). For background on the amendment of 1989, see Cynthia Samuel, Letter from Louisiana: An Obituary for Forced Heirship and a Birth Announcement for Covenant Marriage, 12 TUL. EUR. & CIV. L.F. 183 (1997).
(116.) LA. CIV. CODE ANN. art. 2025 (2012).
(117.) Id. art. 2026.
(118.) Id. art. 2027.
(119.) Id. art. 2028.
(120.) See supra notes 106-110.
(121.) LA. CIV. CODE ANN. art. 2028 cmt. e (2012).
(122.) LA CIV. CODE ANN. art. 2028 cmt. e (2012). For the evolution of Louisiana's policy of forced heirship, see the comments accompanying LA. CIV. CODE. ANN. art. 1493 (2012).
(123.) LA. CIV. CODE art. 2239 (1870); LA CIV, CODE ANN. art. 2028 (2012).
(124.) LA. CIV. CODE ANN. art. 2025, cmt. c(2012),
(125.) COD. CIV. art. 989 (1871).
(126.) Id. art. 994.
(127.) Id. art. 990.
(128.) See infra notes 132-40 and accompanying text.
(129.) For a survey of code structures available for consideration at the time of the Louisiana revision, see Shael Herman & David Hoskins, Perspectives on Code Structure: Historical Experience, Modern Formats, and Policy Considerations, 54 TUL. L. REV. 989 (1980). This paper grew out of memoranda prepared for discussions of the future structure of the revised Louisiana Civil Code. On the hub-spoke structure, see generally Raymond T. Nimmer, Intangibles Contracts: Thoughts of Hubs, Spokes, and Reinvigorating Article 2, 35 WM. & MARY L. REV. 1337 (1994). American scholarship highlighted the hub-spoke structure after the UCC had been in use for some years. Scholarship was generated along with discussion about revising and expanding the UCC to include transactions it did not initially regulate. According to Nimmer, in a hub-and-spoke configuration general contractual norms would form the hub of Revised Article 2 (Sale). Depending upon how one stated the criteria for the hub provisions, the hub would include many current UCC Article 2 rules about contract formation and interpretation, supplemented perhaps by norms from the Restatement and other sources of commercial law. The spokes would contain rules applicable to particular contract types. Id. at 1387-88. For links between the UCC's hub-and-spoke structure and that of the Civil Code, see Shael Herman, The Fate and the Future of Codification in America, 40 AM. J. LEGAL HIST. 407, 437 n.99 (1996) [hereinafter Herman, The Fate and the Future of Codification].
(130.) LA. CIV. CODE ANN. art. 1967 (2012) (discussing detrimental reliance).
(131.) For example, according to current Civil Code article 2438, the first provision in the sale titles: "In all matters for which no special provision is made in this title, the contract of sale is governed by the rules of the titles on Obligations in General and Conventional Obligations or Contracts." LA. CIV. CODE ANN. art. 2438 (2012). Analogously, Louisiana Civil Code article 2669 fulfills the function of article 2438 in the lease titles. Id. art. 2669.
(132.) For characteristics of nominate and innominate contracts under Roman law, see RUDOLPH SOHM, THE INSTITUTES OF ROMAN LAW, 294-96 (J. C. Ledlie trans., 1892).
(133.) See U.C.C. [section] 1-102 (2012).
(134.) Id. On nominate and innominate contracts in Louisiana jurisprudence, see generally Herman, Detrimental Reliance in Louisiana Law, supra note 10, at 727-32.
(135.) Llewellyn had studied German law and written a dissertation while in Germany. Advertising abundant German influences upon his thought (indeed he received the German Iron Cross for service) could have jeopardized his commercial code project among GIs returning from Europe. Ansaldi, supra note 13. Anxious to safeguard his project from sabotage by nativist elements during the aftermath of World War II, Llewellyn denied all German inspiration. Responding to the emigre scholar, Stefan Riesenfeld, Llewellyn told him the secret of his success had been to "[s]teal from everybody but never admit it. It would be the kiss of death." Riesenfeld speculated that "["Llewellyn's] attitude perhaps explain[ed] why [he] refrained from references to contemporary German writings and legal theories." Herman, The Fate and the Future of Codification, supra note 129, at 407, 437 n.71 (internal quotations omitted). References to Riesenfeld, are from STEFAN RIESENFELD, THE IMPACT OF GERMAN LEGAL IDEAS AND INSTITUTIONS ON LEGAL THOUGHT AND INSTITUTIONS IN THE UNITED STATES, IN THE RECEPTION OF CONTINENTAL IDEAS IN THE COMMON LAW WORLD 1820-1920 91 (ed. M Reimann).
(136.) Daniel Murray, Under The Spreading Analogy of Article 2 of the Uniform Commercial Code, 39 FORDHAM L. REV. 447 (1971). UCC Article 2 long authorized analogical interpretation of its provisions. See, e.g., U.C.C. [section] 1-103 (2012). According to Comment 1:
The Uniform Commercial Code is drawn to provide flexibility so that, since it is intended to be a semi-permanent and infrequently amended piece of legislation, it will provide its own machinery for expansion of commercial practices. It is intended to make it possible for the law embodied in the Uniform Commercial Code to be applied by the courts in the light of unforeseen and new circumstances and practices. The proper construction of the Uniform Commercial Code requires, of course, that its interpretation and application be limited to its reason.
(137.) For evolution of U.C.C. [section] 2-207 and its jurisprudence, see generally Phillip A. White, A Few Comments About the Proposed Revisions to UCC Section 2-207: The Battle of the Forms Taken to the Limit of Reason, 103 COM. L.J. 471 (1998).
(138.) For the mirror image rule and an example of judicial salvage of a contract that would have aborted based upon exchanged forms alone, see C. Itoh & Co. v. Jordan Int'l Co., 552 F. 2d 1228, 1235-38 (Ill. App. Ct. 1977).
(139.) E.g., U.C.C. [section] 1-303 (2012) (defining course of performance, course of dealing, and usage of trade).
(140.) U.C.C. [section] 2-207 (2012).
(141.) See 1 HAWKLAND U.C.C. SERIES 2-209:2 (2012).
(142.) Of course, if the student wished a detailed treatment of immovable sales, she would have found the Civil Code more helpful than the U.C.C.; the latter said almost nothing about mortgages and titles, and Llewellyn himself was avowedly skeptical about contract analysis based upon the concept of title. See generally Llewellyn, supra note 4; see also Stefan Riesenfeld, The Influence of German Legal Theory on American Law: The Heritage of Savigny and his Disciples, 37 AM. J. COMP. L. 6 (1989) (stating that the thought patterns of the modern common law legal architects and that of the Pandectists merged in Llewellyn's intellect).
(143.) Expose de Motifs to LA. CIV. CODE. ANN. Bk. III, tit. VII (2012).
(144.) See supra note 90.
(145.) The imperative supplementary dichotomy might crop up in unexpected places in the UCC. Without citing explicitly the term "supplementary" in U.C.C. [section] 2-207, a comment under U.C.C. [section] 2-403 dictated broad inclusion of supplementary principles into analysis of sale agreements:
[T]he policy of this Act (i.e. the Uniform Commercial Code) expressly providing for the application of supplementary general principles of law to sales transactions wherever appropriate joins with the present section (i.e. Section 2-403) to continue unimpaired all rights acquired under the law of agency or of apparent agency or ownership or other estoppel, whether based on statutory provisions or on case law principles.
U.C.C. [section] 2-403 (2012). See also id. [section] 2-207:83. For the supplemental character of general contract principles in a contract, see C. Itoh & Co. v. Jordan Int'l Co., 552 F.2d 1228, 1237 (7th Cir. 1977). Debates over the permissible list of gap filler terms suggest that the legal community has embraced the imperative-suppletive dichotomy, despite disagreement about details. Some scholars would limit the list of gap fillers to explicit gap fillers while others argue for a broader list, including sections directing consideration of party conduct, to permit comprehensive interpretation of the parties' agreement. See, e.g., PCS Nitrogen Fertilizer L. P. v.
Christy Refractories L.L.C., 225 F.3d 974 (8th Cir. 2000).
(146.) E.g., U.C.C. [section][section] 2-314, 2-316 (2012).
(147.) U.C.C. [section] 1-103 (2012).
(148.) LA. CIV. CODE ANN. art. 2602 (2012) (emphasis added).
(149.) Shael Herman, Llewellyn the Civilian: Speculations on the Contribution of Continental Experience to the Uniform Commercial Code, 56 Tul. L. Rev. 1125, 1145 (1982) (citation omitted); 1 U.C.C. DRAFTS 370-72 (compiled by E. S Kelly, 1984).
(150.) See supra note 145.
(151.) For an account of this evolution and the Law Institute deliberations on cause and detrimental reliance, see David V. Snyder, Hunting Promissory Estoppel, in MIXED JURISDICTIONS COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 304 (Elspeth Christie Reid and Vernon V. Palmer eds., 2009). The author's disagreements with some of Professor Snyder's conclusions, appear in Shael Herman, Odd Men In: The Fascinating Legal Kinship of Scotland and Louisiana, 85 TUL. L. REV. 1145, 1173-77 (2011).
(152.) For policy considerations leading to incorporation of detrimental reliance into the Civil Code's definition of cause, see generally Herman, Detrimental Reliance in Louisiana Law, supra note 10.
(153.) See Scalise, supra note 101.
(154.) LA. CODE CIV. PROC. art. 1005 (2012) (discussing affirmative defenses).
(155.) To these categories may be added a fifth category of ideas lodged in judicial rulings that courts, for unarticulated reasons, decide not to publish. In the future, a fascinating study could be made of judicial reasoning lying behind these decisions not to publish case reports.
(156.) See, e.g., Tompkins v. Prentice, 12 La. Ann. 465 (1857).
(157.) Taylor v. Babin, 2008-2063 (La. App. 4 Cir. 5/8/09); 13 So. 3d 633.
(158.) Taylor v. Babin, 2008-2063 (La. App. 4 Cir. 5/8/09); 13 So. 3d 633, 638.
(159.) Acro-Tek Communications v. Coronet, LLC, No. 06-11162, 2007 WL 4162873 (E.D. La. 2007).
(160.) In re Goldberg, 277 B.R. 251, 273-84 (M.D. La. 2002).
(161.) For background on these judicial methods, see generally Shael Herman, The Contribution of Roman Law to the Jurisprudence of Antebellum Louisiana, 56 LA. L. REV. 257, 286-92 (1995).
(162.) In re Lawrence Goldberg, 277 B.R. 251, 280 (M.D. La. 2002).
(163.) Lambert v. Ray Brandt Dodge, Inc., 09-739 (La. App. 5 Cir. 1/26/10); 31 So. 3d 1108, 1112.
(164.) Harvey v. White, No. 2009-2141, 2010 WL 3629598, at *7 n.8 (La. App. 1 Cir. 10/20/10); Bridges v. Bridges, 96-1191 (La. App. 3 Cir. 3/12/97); 692 So. 2d 1186.
(165.) See, e.g., Bowen v. Smith, 2003-0432 (La. App. 4 Cir. 10/8/04); 885 So. 2d 1, 5.
(166.) Holloway v. Gulf Motors, Inc., 588 So. 2d 1322 (La. App. 2 Cir. 1991).
(167.) Quality Mfg. Co. v. Direct Factory Stores, Inc., 540 So. 2d 419 (La. App. 1 Cir. 1989).
(168.) E.g., Owen v. Owen classified the two categories as "pure simulations" and "disguised transfers", viewing the former as absolute nullities and the latter as relative nullities. Owen v. Owen, 336 So. 2d 782, 787 (La. 1976).
(169.) 1 LA. PRAC. REAL EST. [section][section] 8:57-58 (2d ed. 2011).
(170.) See Adam Liptak, Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa, N.Y. TIMES, April 11, 2009.
Shael Herman, Professor Emeritus, Tulane Law School; Trustee, Academy of European Private Lawyers, Milan. This essay is respectfully dedicated to Professor Marcel Garsaud and the memory of Professor Janet M. Riley.
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|Title Annotation:||III. Further Exploration of Foreign Law Inspiration C. Filling Legislative Gaps by Reference to the Law in Action 3. Simulation d. Forced Heirship through V. Conclusion-Coda: Preaching Good News, with footnotes, p. 532-558|
|Publication:||Loyola Law Review|
|Date:||Sep 22, 2012|
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