The Uses of Analogia Iuris in the Louisiana Code of Practice ... · Web viewThe Uses of Analogia Iuris in the Louisiana Code of Practice (1825)* Shael Herman** Readers are reminded

The Uses of Analogia Iuris in the Louisiana Code of Practice (1825)*

Shael Herman**

Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronic-ally or printed, for personal and classroom use.

I. Introduction

As jurists in the only American state with a Romanesque civil code, Louisiana lawyers have contended for over two centuries with an intellectual loneliness verging occasionally on solipsism.1 While lawyers from the other forty nine states feast on a bountiful harvest of scholarly works published by national publishing houses, we dine mainly on locally grown output about the civil law. By cutting us off from many of the intellectual wellsprings of our private law, widespread ignorance of the mother languages of the civil law (i.e., Latin, Italian, French, Spanish, German, and Dutch,) has deepened our isolation. Louisiana lawyers’ daily reading of our codes has suffered from insufficient understanding of statutory interpretive methods that have been the stock in trade of civilians and canon lawyers. The third in a series of papers on Louisiana’s early codes, this study expands our knowledge of statutory interpretation by reflecting upon a heuristic device that the early Louisiana law drafters, * This article is dedicated to Warren A Goldstein as a token of our friendship of nearly six decades.** John Minor Wisdom Professor Emeritus, Tulane Law School; Visiting Professor, University of Paris II (Pantheon Assas). This paper completes an EJCL trilogy on the Louisiana Code of Practice (1825) by Shael Herman. It first appeared in 23 Tulane European and Civil Law Forum 51 (2008). The first two instalments appeared in EJCL issue 12.1 (http://www.ejcl.org/121/papers121.html).1 Owing partly to the uniqueness of our mixed legal system within the United States, our loneliness is temporarily relieved by exchanges with other mixed and civil law systems. On the virtues and drawbacks of Louisiana’s unique legal system, see generally Shael Herman, Louisiana: One Off Among Fifty States, in The Influence of the French Civil Code on the Common Law and Beyond 115 (D. Fairgreave ed., 2007); Shael Herman, Epistle to Catalonia: Romance and Rentabilidad in an Anglophone Mixed Jurisdiction, in Regional Private Laws and Codification in Europe 221 (H MacQueen, A Vaquer, & S E. Espiau eds, 2003) translated in Epistola a Cataluna: Romance y Rentabilidad en un Ordenamiento Mixto Anglofono, La Notaria (Brcelona) Tomo 1, Numeros 11-12 at 41 (2001). One tacks against the wind if he tries to explain to American lawyers the French and Spanish influences upon our law, for the American polity seems to suffer from an allergy, indeeda phobia, toward international law and multinational organizations. I know of no other enlightened legal system in which justices of the highest national court, seemingly in the grip of nativist urges, inveigh against fellow justices for occasionally informing their opinions with references to foreign law. These critics seem oblivious to the fact that American law, predictably for a relatively young nation of settlers from distant lands, is to a considerable extent an alloy of foreign legal influences. Their contempt for fellow judges who favor reference to foreign law is reason enough to wonder where American law is now going. See generally David M O’Brien, More Smoke Than Fire: The Rehnquist Court’s Use of Comparative Judicial Opinions and Law in the Construction of Constitutional Rights, 22 J Law & Politics 83 (2006).

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http://www.ejcl.org/121/papers121.html

Electronic Journal of Comparative Law, vol. 12.3 (December 2008), http://www.ejcl.org

Edward Livingston, Louis Moreau-Lislet and Pierre Derbigny, built into the Louisiana Civil Code and the Code of Practice of 1825. I argue here that the three drafters yoked these codes together by means of both a common terminology and a methodological commitment to purposive interpretation animated by a venerable technique, analogia iuris.

In an earlier essay,2 I argued that the three law commissioners sought to confer equal rank upon the two codes. Indeed, an early Louisiana enactment had even assigned the Code of Practice priority over the Civil Code in case of conflict between the two codes.3 The priority rule might seem a counterintuitive inversion to a civil lawyer, for he would locate the Civil Code at the apex of a hierarchy of legal sources, and a procedural code several rungs below the Civil Code. The priority rule may be understood, however, against the backdrop of Louisiana’s unusual legal evolution. During the eighteenth century, Louisiana was a civil law stronghold under French and then Spanish rule. Early in the nineteenth century, the Louisiana Purchase caused the territory’s legal shift to a mixed jurisdiction in an early stage of gestation. Thanks to political pressures from President Thomas Jefferson; his hand picked governor, W.C.C. Claiborne, and his judicial appointees from other states, a burgeoning American common law posed a growing challenge to the civil law tradition. If, in 1803, the Louisiana Purchase had not implicitly imposed American legal norms on Louisiana inhabitants, then a declaration by Louisiana lawmakers indicated that the norms were generally received by 1806. In that year, a Louisiana legislative manifesto acknowledged the preeminence of national laws. Yet it also insisted upon continuation of the territory’s civil laws compatible with national laws.4

To the three law commissioners, the priority rule was emblematic of an enduring dilemma. On one hand, it consisted of preserving the state’s civil law in accordance with the consensus of the local populace while, on the other hand, conforming the civil law to common law norms that animated United States jurisprudence. To manage the dilemma (it has never been resolved), the drafters satisfied local lawyers by enshrining in the Code of Practice of 1825 a number of civilian institutions. To the probable delight of lawyers arriving from other states, the drafters also “constitutionalized” the Code of Practice by incorporating into it extensive regulation of American constitutional norms such as habeas corpus, the prerogative writs, jury trials, and an adversarial process.5

2 The Louisiana Code of Practice (1825): A Civilian Essai Among Anglo American Sources(Part I) The Electronic Journal of Comparative Law Jurist; Part II (hereinafter cited as Essai).3 “In case the [. . .] Code of Practice should contain any provisions contrary or repugnant to those of the Civil Code, the latter shall be considered as virtually repealed or thereby amended in that respect.” La. Acts 1824, Section 10 (April 12th, 1824).4 “Since we have the power to keep our old laws insofar as they do not conflict with the Constitution of the United States and the special acts passed for our provisional government, no one can deny the advantage to us of remaining under a system to which we are accustomed and which has nothing contrary to the affection which we owe to our government.” Le Telegraphe, June 3rd, 1806, reprinted in 9 THE TERRITORIAL PAPERS OF THE UNITED STATES 643-57 (C. E. Carter ed., 1940).5 For an account of the integration of these institutions and doctrines into Louisiana civil procedure, see generally Essai, Parts I and II, supra note 2.

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An exercise in accommodating the rival traditions, “constitutionalizing” the Code of Practice seemed to have two purposes, one internal to Louisiana’s legal system and the other external to it. In terms of external effects, the process rendered the procedural character of Louisiana law recognizable to lawyers in other states and institutions of the national government. Such recognition required Louisiana courts to conduct trials and give judgments that formally followed American patterns and could pass constitutional muster although the disputes in the courts were animated by civilian doctrine. In terms of internal effects, a process of constitutionalizing the Code of Practice gave newly arriving lawyers signposts in a topography dominated by unfamiliar civilian norms and concepts. Although the provenance of the Civil Code was almost entirely civilian, that of the Code of Practice derived from a fair balance of civilian and common law institutions and practices. By providing a field in which the rival traditions met and accommodated one another, the Code of Practice offered an unusual window into the legislative processes that yielded the mixed legal system.

II. The Heuristic Value of Analogical Interpretation

The law commissioners’ report on their work suggested their intention to link substantive rights and duties embodied in the Civil Code with enforcement mechanisms in the Code of Practice: 6

We have thought it our first duty to comprise in the several Codes we deem necessary for stating and defining the rights of individuals in their personal relations to each other [. . .] preserving and transferring property and rights [Author’s note: i.e., in a civil code] and for seeking civil redress for any injury offered to either. These rules will form the civil and commercial codes, and the System of Judicial Procedure which we are directed to furnish for your consideration.

Although the commissioners’ method could have been spelled out more crisply, their goal seems clearly to have been to link the two codes together. The links were too numerous and clear to be chalked up to coincidence. When a substantive rule or concept in the Civil Code was sounded, then a procedural rule or concept in the Code of Practice would resonate for local lawyers and prompt them to reflect upon key mechanisms in the latter. Ubi ius (in the Civil Code) ibi remedium (in the Code of Practice).By yoking the codes together, the drafters displayed remarkable prescience. They seem to have realized that local civilians, even though deprived of a procedural safety net, might still comfortably navigate the Civil Code’s abstract formulations of rights and duties. But from the time of the Louisiana Purchase, a swelling number of common lawyers likely would have welcomed a procedural context for unfamiliar substantive rules and concepts translated from Latin, Spanish, and French sources.

For the Louisiana Civil Code alone, analogia iuris was an indispensable instrument of interpretation. An elegant method whose name betrayed its origins in ancient Greek

6 Edward Livingston, et al Preliminary Report of the Code Commissioners (February 13th, 1823), reprinted in 1 LA LEGAL ARCHIVES lxxxix (1937) (hereinafter cited as Commissioners’ Report).

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philosophy and Latin rhetoric,7 analogical interpretation was a main instrument by which Romanists extended their legal texts in both time and space.8 Across Europe, medieval churchmen, the principal transmitters of a legal culture indebted to both classical learning and Christian theology, relied upon analogical interpretation to enlarge the scope of legal rules they had inherited from the Roman jurists. Gradually the churchmen tempered and harmonized the rules into a ius commune that would displace disparate customary laws prevailing in the most remote corners of Christendom.

By projecting the rules in time, analogical interpretation also enabled medieval lawyers to save them from ossifying or collapsing under the pressure of unanticipated historical circumstances. Embraced by the formalistic école de l’exégèse, the analogical method permitted French revolutionary jurists during the early 1800s to discover the inner policies and organic interactions of their civil code rules. In France their juristic method came to be associated with the famous maxim, “par le code mais au-delà du code.”9 As Thomas Aquinas had drawn analogies between the human intellect and divine omniscience, French jurists drew an analogy between the minds of their code drafters and the mind of God. “Who has the place of God on earth?” Napoleon rhetorically asked. Answer: “The legislator”, by which Napoleon meant himself. In his self aggrandizement, Napoleon followed Justinian, who had a millennium earlier legitimated his compilation on the basis that its author was an emperor who was both Christian and Roman.

7 The most ancient form of analogy seems to have been the statement of geometric ratios or mathematical proportions (A:B=C:D). For lawyers, analogy is an indispensable tool for identifying continuities in time and space. It lies at the base of the lawyer’s quest for symmetry, order, and legislative coherence. Applied to legislative texts, analogia iuris has usually been designated by a subspecies, analogia legis. But here I have used the broader, more familiar term analogia iuris to describe analogical interpretation because our analysis navigates among constitutions, legislation, judicial decisions, doctrine, and editorial comments. On the roots of the interpretive techniques in Roman law and Greek rhetoric, see Shael Herman, The Equity of the Statute and Ratio Scripta: Legislative Interpretation Among Legislative Agnostics and True Believers, 69 TUL. L. REV. 535 (1994). (cited hereinafter as Equity of the Statute); PETER STEIN, REGULAE IURIS 131-132 (1961).8 On the role of analogy in interpretation of civilian legislation, see Shael Herman, Under My Wings Everything Prospers: Reflections Upon Vernon Palmer’s The Louisiana Civilian Experience—Critiques of Codification in a Mixed Jurisdiction, 80 Tulane L Rev 1491, (2006); Shael Herman, The Equity of the Statute, supra note 7, 548-549. During the middle ages, analogical interpretation was also important for the methods of Jewish and Christian scholars who sought to uncover and harmonize the meanings of the Bible and authoritative texts. Id. at note 61.9 R. Saleilles, Préface, in F. GÉNY, MÉTHODE D’INTERPRÉTATION ET SOURCES EN DROIT PRIVÉ POSITIF, essai critique xiii (1899) (cited hereinafter as Gény). The lesson to be drawn from Saleilles’s aphorism was that the meanings of the French Civil Code were not frozen at the time of enactment in 1804. In other words, in terms familiar in United States Supreme Court jurisprudence, textual originalism would have been inappropriate for interpreting either the French civil code or its Louisiana counterpart. On the contrary, Saleilles urged interpreters of the French Civil Code to take into account social and economic evolution occurring since the time of the code’s adoption. On the evolution of interpretive methods in French law, see generally C. Jamin, Saleilles’ & Lambert’s Old Dream Revisited, 50 AM. J. COMP. L.701 (2002).

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Around 1900, François Gény made the analogical method a foundation stone for his celebrated libre recherche scientifique.10 Originating in classical Rome and later taking root in the Holy Roman Empire, these civilian developments coalesced in Europe’s legal thought. They endured in Article 17 of the Louisiana Civil Code of 182511 which enshrined the principle of analogical interpretation.

Laws in pari materiae, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.

If interpretation in pari materiae resulted in legislative ambiguity, then CC (Civil Code) article 18 instructed the court to inquire into the purpose of the law in question:

The most universal and effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it or the cause which induced the Legislature to enact it.

French doctrine in time embraced the analogical methods embodied in the Louisiana Civil Code. It could not have been otherwise, for without analogical interpretation, the codes would not have endured. If the Louisiana Purchase had not occurred, then Louisiana’s legal evolution might have followed that of France or another French territory. Perhaps the unique blend of French and Spanish laws, unaffected by the common law, would have yielded a system unlike any we know today. But these things we shall never know. We do know that the Purchase and the territory’s consequent mixed character challenged the commissioners to exercise fully their powers of improvisation. They deployed techniques of analogia iuris beyond the Civil Code, (au- delà du Code) into a procedural realm dictated by the Constitution and American legal norms. The Code of Practice elaborated several hundred articles that would reinforce cognate Civil Code articles and in turn be reinforced by them. When analogical interpretation of the two codes sometimes spent itself in simple reinforcement of the rules, this was nonetheless an estimable advantage for local lawyers in search of pathways through an unfamiliar legal thicket.12 As early judicial opinions attested, analogical interpretation went beyond reinforcing the rules, enabling regulation in one code subtly to color cognate regulation in the other.13 To borrow Portalis’s famous phrase, each

10 Gény, supra note 13. This work, in a translation by J. Mayda, was published by the Louisiana State Law Institute as Method of Interpretation and Sources of Private Positive Law (1963).11 CIVIL CODE OF THE STATE OF LOUISIANA, 1825 (ed. Morgan 1853).12 For the law commissioners’ view of the confusing character of territorial law, see generally Commissioners’ Report Lxxxv-lxxxix.13 For judicial examples of this phenomenon, see Seixas v Citizens Bank, 38 La Ann 424 (financial failure or insolvency explained in light of CP art 165 and CC art 3027); Soulie v Soulie, 5 La 26, 1832 WL 947 (role of curator of absentee explained in light of cognate provisions of Code of Practice and Civil Code); Allison v Maroun, 193 La 286, 190 So 408 (interpreting the meaning of possess in light of CP article 47 and CC art 3454); Jennison v Warmack, 5 La 493, 1833 WL 2645, (analogical reading of CC and CP); Vance v Lafferanderie, 4 Rob. 340, 1843 WL 1392 (1843) (in accordance with the priority rule, supra note 7, CC article 1987 was substantially modified by CP article 647). Parker v Starkweather, 7 Mart n s 337; 1825 WL 1644 (analogical interpretation of seizure regulation in both Civil Code and Code of Practice); Hallock v Caruthers, 5 Rob 190; 1843 WL 1522 (interpreting Civil Code and Code of Practice in pari materia on proper service of interrogatories).

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code made the other more fécond en conséquences (fertile in effects) than it would have been if read alone.14 Following a scholastic method that beamed the light of the Old Testament and the New Testament upon one other, each code constituted a catechism or user’s guide for the other code’s gospel.15

III. Sounding a Theme in the Civil Code: Obligation with Performance Subject to a Term (CC articles 2043, 2048, and 2052)

Our study illustrates the interdependence of the codes at the level of single words (i.e., term), simple phrases (natural obligations), and finally entire titles (judicial remedies). In the first two examples, the links between the codes are implied; in the last illustration, the links are explicit. To demonstrate the interdependence of the two codes in a readily understandable context, we first focus upon “term”, a word understood differently by common law doctrinal writers and their civilian counterparts. In the language of common law contracts, the word term refers loosely to a clause, a provision, a condition, or a stipulation in an agreement.16 Civilian doctrine has assigned “term” a more technical meaning than common law doctrine. Indispensable for a credit economy dependent upon executory contracts payable in installments, “term” refers to a period granted an obligor for performance. According to CC article 2043, “the time given or limited for the performance of an obligation is called its term.”17 By locating a provision on “term” in a chapter titled “Of the Different Kinds of Obligations”, the drafters made clear that “term” applied broadly to a range of obligations, however they might arise. “Term” might designate a specified period in almost any document or transaction;18 it could exist by virtue of a statute or a judicial order.

14 “Féconds en conséquence” was Portalis’s picturesque shorthand for the analogical power of sound code provisions. For Portalis’s preliminary discourse on the French Civil Code, see Alain Levasseur, Code Napoleon or Code Portalis?, 43 TUL. L. REV. 762 (1969).15 Because indoctrinating an uneducated flock required moral object lessons, this catechistic function played an important role in interpreting the Old and the New Testaments. According to Christian theologians who sought to establish the parity of the New Testament with the Old Testament, the latter prophesied events and figures in the former. For example, the Gospels depicted Jesus (Old Testament: Joshua) as the new Adam. In some instances, figures who shared a proper name performed similar acts having implications for their salvation. For example, the names Judah and Judas derived from the Hebrew Yehudah. In the Old Testament Judah sinned by suggesting the sale of Joseph into bondage. In the New Testament, a central example of sinful conduct concerned Judas’s acceptance of money to betray Jesus.16 In recognition of the mixed character of the state’s law, Louisiana courts from an early date also routinely attributed to term this common law meaning. See, e.g., Municipality No 2 v Hennen, 14 La 559, 1840 WL 1096, Johnson v Quarles, 3 La. 90, 1831 WL 682. Because “term” could be ambiguous, a body of scholarship has developed to explain its technical meanings. See, e.g., SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 6.1.17 The Code of Practice and parts of the Civil Code of 1825 were republished in the Louisiana Legal Archives (1937), but the articles therein were either inconsistently numbered or not numbered at all. In this essay, code numbers correspond to those of the Civil Code of 1825, (ed. Morgan; 1853), cited note 11 supra; and Fuqua’s edition of the Code of Practice). Hereafter a reference to an article of the Civil Code of 1825 is abbreviated as “CC article -------.”A reference to the Code of Practice is abbreviated as “CP article ______”. “Current article” refers to the legislation in force on the date of publication of this paper. So, for example, to demonstrate the continuity of a particular idea from the earlier civil code to the current civil code, this essay reports that “the principle of CC article 2043 (1825) is now elaborated in current CC article 1778.”18 For example, CC article 603 (1825) stipulated that a usufruct could begin or end upon arrival of a term or a condition. “If the title of the usufruct has limited the right to it to commence or determine (Author: i.e., terminate) at a certain time, or in the event of a certain condition, the right does not commence or determine, till

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Relying upon the concept of “term”, CC article 2052 announced a limit on an obligor’s duty to perform:

Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the subject of the contract cannot be done after certain hours of that day.

By locating CC article 2052 in a title “Of the Nature and Division of Obligations”, the law commissioners extended the article’s scope beyond duties ex contractu to the other categories of duties (ex delicto, quasi ex contractu, quasi ex delicto). The Civil Code articulated several corollaries whose goal was to balance the considerable rewards of credit arrangements against a creditor’s risk that his debtor, despite his best efforts, might be unable to fulfill his obligations on an agreed date. Many of these corollaries have endured in the revision of the obligations articles for which Professor Litvinoff was the reporter. First, the term of an obligation operated for the obligor’s advantage; in the language of CC article 2048, “the term is always presumed to be stipulated in favour of the debtor”.19 But the debtor could lose the advantage if he became unable to render his performance or voluntarily renounced his duty.20 Second, good faith bound the obligor not to prejudice his undertaking by voluntarily rendering himself unable to fulfill it. Third, if an obligor had until the last day of the term to

the condition happens or the time elapses.” As CC Article 603 indicated, a term, like a condition, could be either suspensive or resolutory. For the creation and extinction of a usufruct upon a term or a condition, see now current CC article 610. The concept of “term” could also affect a buyer’s duty to pay interest on a price: “When the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term.” CC article 2532 (1825). For other applications of “term” in the context of buyer’s duties, see CC articles 2540-41.19 Thus, a vendor could not put his purchaser in mora or default before the arrival of a specified term. Nettles v Scott, 17 La 336, 1841 WL 1291. The principle of CC 2048 was recast in a common sense formulation in current CC article 1779 which provides: “A term is presumed to benefit the obligor unless the agreement or the circumstances show that it was intended to benefit the obligee or both parties.” If a term under the new articles did not perforce benefit the obligor exclusively, then the obligor alone could not renounce the benefit. Current CC article 1780 addresses the obligor’s renunciation when he is the exclusive beneficiary of the term. (“The party for whose exclusive benefit a term has been established may renounce it.”) Comments to the new article make it clear that its formulation benefited from both the Quebec Draft Civil Code (1977), a precursor of the new Quebec Civil Code, and the Israeli Contracts Law article 42.20 This principle generalizes ideas made explicit in other Civil Code articles regulating term. For example, CC article 2049: “Wherever there is a cession of property, either voluntary or forced, all debts due by the insolvent shall be deemed due, although contracted to be paid at a term not yet arrived. . .” Millaudon v Foucher, 8 La. 582, 1835 WL 708 (“[. . .] article 2049 [. . .] requires not merely an actual insolvency or inability to pay debts, but a surrender of property either voluntary or forced, for the common benefit of creditors. The general rule is that what is due by contract at a particular time cannot be demanded before expiration of the intermediate time.”) CC article 2050: “If a debt be contracted to be paid at a term, and security be given for the payment, if, from whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obligation is due, exact either that good security be given, or that the debt be immediately paid.” See now current CC articles 1782 and 1783. These two articles envisioned two separate hypotheses that depended upon the obligor’s becoming insolvent. Current CC article 1782 makes clear that some performances, especially those of an entirely personal character, do not require an obligor’s solvency. The obligor should lose the benefit of the term only when he has become insolvent and his performance requires his solvency. Article 1782 thus provides: “When the obligation is such that its performance requires the solvency of the obligor, the term is regarded as nonexistent if the obligor is found to be insolvent.” Assuming the common situation that the obligor’s performance depends upon his solvency, and he has promised security for his performance, then he may lose the benefit of the term unless he furnishes sufficient security. See now current CC article 1783.

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perform, then a creditor could not demand performance from the obligor until the arrival of the last day. This last principle had practical implications for the formulation of actions and exceptions under the Code of Practice.

IV. Resonating in the Code of Practice (CP articles 14, 15, 16, 330, and 332), the Concept of Term Highlights Links with Cause of Action, Right of Action, and Exceptions

Having sketched key features of “term” in the Civil Code, we next seek resonances of the theme in the Code of Practice. For example, CP article 14, appearing in a title “Rules Applicable to All Civil Actions”, provided:

Every obligation gives impliedly a right of action to enforce its execution; but the obligation and the right of action do not always arise at the same time. Thus in contracts to be performed at a future period, the obligation which grows out of the contract, arises at the very moment of making it, but the right of action growing out of it, arises only when the stipulated term has arrived. [Italics added]

Rich in practical instruction about civil actions, CP article 14 linked the “term” for performance of an obligation to a venerable distinction between “cause of action,” and “right of action” both primordial enforcement mechanisms crucial in judicial procedure. Comparable to intérêt à agir (interest to act) in French procedure, “cause of action” was suggested by the familiar aphorism in French procedure pas d’intérêt, pas d’action (no interest, no action). The French phrase most nearly approximates the facet of procedural standing called by proceduralists “injury in fact.” CP article 15 elaborated this French aphorism in different terms: “An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arise (sic), he may bring his action.”

CP article 14 highlighted an implication of the civil code regulation of “term” and particularized it for the category of contracts. Although an obligation arose upon conclusion of a contract, the enforceability of duties embodied in the contract could be postponed until arrival of the term. The second sentence of CP article 14 linked a substantive principle enshrined in CC article 2052 (i.e., Rights and duties arise upon a contract’s conclusion)—with a procedural principle (enforceability of contractual rights may be postponed until arrival of a term). This illustration of the operation of a substantive rule in a procedural context likely was designed to help early Louisiana lawyers cut pathways through unfamiliar terrain.

Echoing a principle embodied in CC article 2052, CP article 16 justified the postponement of an enforcement action until the expiration of the last day stipulated for fulfillment of the obligation: “In all actions which are to be brought at the end of a stated period, the right of action subsists until the last day has expired.”

Litigators should especially admire the way in which the law commissioners pressed CP article 16 beyond the substantive definition of “term” and toward defenses by means of exceptions. Legacies of classical Roman procedure, exceptions, like modern demurrers and

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motions to dismiss, have long been deft organizers of a civil proceeding. An exception brings into focus the order in which issues should be decided. If material facts are not contested before the trial court, then an exceptor-defendant can often short-circuit a suit by interposing a defense either to defeat the suit altogether (peremptory) or delay its progress (dilatory).21 For example, an action for enforcement of an obligation subject to a term, if filed before the last day granted for performance, may be dismissed on an exception of prematurity.

CP article 330 sketched the defensive character of exceptions by announcing that “exceptions are [. . .] used by the defendant to retard, prevent, or defeat the demand brought against him.” Closely related to the regulation of term, CP article 332 defined the role of the dilatory exception in characterizing the claimant’s demand as premature. “Dilatory exceptions [. . .] do not tend to defeat the action, but only to retard its progress.”

V. Sounding the Theme of Natural Obligations in the Civil Code (CC 1749, 1750, 1751, and 1752)

Understanding the interdependence of the codes through their combined regulation of natural obligations requires us to thread a pathway through a number of different contexts in which such obligations are regulated. Physically remote from one another, the contexts seem unrelated. Analogical interpretation seems to generate a centrifugal force that scatters leitmotifs associated with natural obligations (e.g., error of law, cause, unjust enrichment). Seemingly inconsistent rules on the actionability of natural obligations compound the difficulty of figuring them out. The regulation is a puzzle in the sense that it recognizes natural obligations as binding in some circumstances, but not other similar ones. The precise circumstances for enforcement of a natural obligation can elude us, especially because Louisiana jurisprudence has long recognized natural obligations in many different situations.22

A comprehensive vision of natural obligations emerges as we trace several leitmotifs through the codes. The code contexts for natural obligations include [i] the Civil Code’s definition of natural obligation, where it is located in a hierarchy of categories of obligations (CC articles 1749-1752); [ii] the Civil Code’s regulation of error of law, where a natural obligation may block an obligor’s recovery of a payment or performance that he could have legitimately reclaimed otherwise (CC article 1840); [iii] the Civil Code’s regulation of unjust enrichment (CC 2280-2285), which barred a debtor’s recovery of a payment for which he was not civilly liable because it recognized a natural obligation; [iv] the Code of Practice rules that authorize no action to enforce the obligation, and yet bar recovery of what has been paid… (CP articles 9, 17, and 18). [v] A fifth context for natural obligations consisted of editorial comments in the Civil Code that viewed natural obligations in light of the common law idea of consideration and the civilian idea of cause.

VI. Centripetal Force Generated by Civil Code Article 1752

21 On the dilatory exception, see generally 1 LOUISIANA CIVIL LAW TREATISE section 6.6.22 See, generally, SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Chapter II, Sections 2.1 – 2.45 (2001).

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CC article 1752 seems to generate a centripetal force that counteracts the centrifugal force of analogical interpretation observed in our account of natural obligations.23 This article simplified analysis by inviting us to view all natural obligations either retrospectively or prospectively, whatever the circumstances in which they arise. The article classified the universe of natural obligations by asking whether the obligation in question was asserted (i) as a defense by a recipient of a payment against an obligor’s suit for reimbursement or (ii) by an obligor when his creditor demanded of him a payment promised in the future.

VII. Descending from General Principles to Particular Applications (CC articles 1749-1752)

Like authors of many classics inspired by the logical rigor of the enlightenment,24 the drafters of the Civil Code organized its regulation of obligations in a hierarchy descending from general principles to particular instances. According to Professor Litvinoff, a civilian contemplates obligation as an abstraction, a formal scheme that can be applied to, or abstracted from, an infinite number of concrete situations.25 The Civil Code regulation of obligations began with a general theme, “the nature and division of obligations.”

CC Art 1749: An obligation is, in its general and most extensive sense, synonymous with duty.

CC article 1750 subdivided obligations into three categories – civil, natural, and imperfect or moral – according to their enforceability by judicial demand. It may seem odd that the drafters regulated imperfect obligations as if they were non-obligations, but, provided the drafters’ reasons were understood, this was indeed the case. According to CC article 1750, imperfect obligations “created no right of action, nor are they entitled to any legal recognition.”

23 For the principle of CC article 1752 (1825), see now, current CC article 1761.24 For example, this hierarchy may be found in René Descartes, Meditations and Baruch Spinoza, Ethics. Among jurists, see J DOMAT, LES LOIX CIVILES DANS LEUR ORDRE NATUREL, which made a deep imprint upon both the French Civil Code and its Louisiana counterpart. Descent from general to specific is clear in particular in Montesquieu’s THE SPIRIT OF LAWS, which opens with Book I, Of Laws in General and then is subdivided into, among other themes, the laws of nature, and the positive laws.25 See SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.9 (2001).

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A comparative law context will clarify the drafters’ reasons for including unenforceable “imperfect” obligations in the taxonomy of obligations. As the drafters hinted, civilians and common lawyers had different understandings of “imperfect” obligations; for the latter, they were enforceable; for the former they were not. These differing views prompted the drafters to assure that their tripartite classification scheme did not compound misunderstandings about imperfect and natural obligations. Their comments represented a pragmatic foray into comparative law.

According to a comment inserted into Article 1750 of the projet of the Civil Code, English doctrine deemed “natural affection” a moral or imperfect obligation that could constitute a valid consideration for a conveyance. Perhaps English lawyers needed “natural affection” to justify a conveyance because their doctrine lacked a comprehensive regulation of gifts like that found in the Civil Code.

If, as the drafters seem to have realized, Louisiana law had followed English doctrine on natural affection as consideration for a conveyance, then it would have been nonsensical for the Civil Code to have shorn an imperfect obligation of all legal effect.26 The most reasonable interpretation of CC article 1750 was that an imperfect obligation had no effect within the civil code scheme of obligations. In supporting this interpretation, the drafters’ comments showed that the integrity of Louisiana law required attention to differences between the civil law and English doctrine on imperfect obligations: 27

Although this kind of obligation [imperfect, moral] has no legal effect whatever [Author’s note: i.e., in the civil code], its definition is introduced because it is frequently referred to by commentators and sometime with such loose expressions, as might induce a belief that it had the effect of a natural obligation, unless the contrary were declared. In the common law of England, “natural affection” which is an imperfect obligation, is a good consideration for a conveyance. As we do not mean to sanction this principle, it was the more necessary to declare it [the difference between English and Louisiana law] because of the danger of introducing from the jurisprudence of our sister states principles inconsistent with that of our own.

26 See now comment C under current CC article 1760.27 Taking the drafters of the Civil Code of 1825 at their word, the 1984 revision of the obligations articles justifiably eliminated imperfect obligations from the universe of obligations set forth in CC article 1750 of the Civil Code of 1825. If, as the earlier code had announced, imperfect obligations had no legal effect, then there was no reason to retain them. Comment C, Current CC article 1760. The law commissioners’ editorial remarks indicated their strategy for including imperfect obligations in the Civil Code, although they acknowledged that these obligations had no legal effects within the Civil Code. By illuminating links between consideration and natural affection, the commissioners’ remarks demonstrated their awareness of consideration doctrine prevailing in England and other states and their intention that Louisiana law on cause should evolve in a different direction than consideration. From the time of the Louisiana Purchase, common lawyers who streamed into Louisiana naturally would have wondered about the validity of imperfect obligations. Completeness required inclusion of imperfect obligations even though pedagogical comments were required to dispel confusion on the part of the lawyers and courts. By 1984, Louisiana law had outgrown the need for imperfect obligations, and they were suppressed.

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VIII. The Conditional Enforceability of Natural Obligations (CC article 1750, CC article 1890)

CC article 1750 next addressed “natural” obligations; depending upon specific situations, these might be enforceable or unenforceable. The conditional enforceability of natural obligations justified their location upon an intermediate rung between civil obligations and imperfect obligations. CC article 1750 [2]:

A natural obligation is one which cannot be enforced by action [author’s brackets: e.g., like the imperfect obligation] but which is binding on the party who makes it in conscience and according to natural justice [author’s brackets: e.g., unlike an imperfect obligation, but like a civil one]

CC article 1751 next posited four categories of natural obligations:

1. Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.

2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law.

3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.

4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions, which the former owner had made, but which are defective for want of form only.

For the moment we leave aside the question whether the list in CC article 1751 was exhaustive or illustrative; the answer (illustrative) emerges later when the two codes’ regulations of natural obligations are read in pari materiae.28

It is difficult to put order into a comprehensive collection of natural obligations, whether already identified or yet to be identified. CC article 1752 provided an organizing

28 From an early date, the Louisiana Supreme Court seems to have assumed the illustrative character of the list in CC article 1751. Alternatively, perhaps the justices believed that a liberal interpretation of the Civil Code would permit the subsumption of a great number of different obligations under the rubric “natural obligations.” See, e.g., Hills v Kernion, 7 Rob. La. 522, (plaintiffs paid official tobacco inspectors for their additional services though they realized that the extra payments were not legally required. Plaintiffs were denied recovery of the payments because they were deemed to have been made in recognition of a natural obligation. Reliance upon an analogy between CP 18 and CC 2281). The illustrative nature of the listing of natural obligations is apparent now in current CC article 1762 (“Examples of circumstances giving rise to a natural obligation are [. . .]”) According to current CC article 1762, comment b, the first sentence of this Article purports to solve a controversy well known in continental doctrine and Louisiana jurisprudence, that is, [whether the list contained in the prior civil code articles] was intended to be exclusive or merely illustrative. However, the comments under current CC article 1762 do not mention the regulation of natural obligations in the Code of Practice; that code made it reasonably clear that the listing was always intended as illustrative.

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principle upon which the collection could be organized. That article instructed us to ignore for the moment the specific circumstances in which natural obligations might arise, and to focus instead on the fact that any natural obligation produced two effects, the first retrospective and the second prospective. The first addressed payments already made by the obligor. The second addressed an obligor’s promise to make a future payment:

1. No suit will lie to recover what has been paid, or given in compliance with a natural obligation.

2. A natural obligation is a sufficient consideration for a new contract.

Like a previously quoted comment under CC article 1750, CC article 1890, which appeared in a chapter titled “Of the Cause or Consideration of Contracts,”29 equated “motive” or “consideration” with “cause”:

By the cause of the contract, in this section, is meant, the consideration or motive [French: cause suffisante] for making it, and a contract is said to be without a cause, whenever the party was in an error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made.

Combining the principles of CC articles 1752 and 1890, an unenforceable obligation, if it fell within the category of natural obligations for a particular reason such as prescription, could constitute a valid cause for a fully enforceable obligation to pay in the future. But to insulate an obligor against his impulsive action, enforceability was made to depend upon his making a new promise to pay in recognition of this natural obligation.30

29 Going back several centuries in English law, a researcher would discover that consideration was an analogue of cause in canon law doctrine and that these bases of enforcement were associated in English jurisprudence. A W B Simpson, Innovation in Nineteenth Century Contract Law, 91 LQR 247, 258. By the time the Louisiana commissioners tackled their drafting assignment, however, the term “consideration” had acquired the objective and formalistic meanings their comments assigned it. It would consequently no longer have been appropriate to couple a civilian concept of cause with the Anglo American understanding of consideration. This contrast between cause and consideration illustrates nicely my earlier remark that the discourse of Louisiana lawyers depended decisively upon a civilian lexicon while the form of many transactions might depend equally decisively upon the lexicon of American commerce. Indeed, “cause” can figure in the form of transactions as importantly as “consideration”. Though new code articles might today clearly separate the concepts of cause and consideration, the discourse of Louisiana commercial lawyers pressed on all sides by colleagues elsewhere in the United States, scrambled them back together again. See generally Shael Herman, Detrimental Reliance in Louisiana Law---Past, Present, (and Future?) The Code Drafter’s Perspective, 58 TUL. L. REV. 707 (1984). 30 This is the formulation in the current obligations articles. See now current CC article 1761

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IX. Natural Obligations: Civil Code Regulation of Error of Law (CC article 1840)

The accuracy of the preceding analysis of natural obligations may be checked by entering the Civil Code through another channel. Starting anew with the regulation of obligations in general, we pass to vices of consent (e.g., error, fraud, duress, threats). To a general statement about error and cause,31 as evoked in CC article 1890, CC article 1840, appearing in the regulation of “vices of consent”, added restrictions and modifications that could weaken the invalidating force of error of law in a rescission action. CC article 1840 provided:

Error in law, [. . .] invalidates a contract, where such error is its only or principal cause, subject to the following modifications and restrictions:

1. Although the party may have been ignorant of his right, yet if the contract made, under such error, fulfilled any such natural obligation as might from its nature induce a presumption that it was made in consequence of the obligation and not from error of right [law] then such error shall not be alleged to avoid the contract. Thus, the natural obligation to perform the will of the donor, prevents the donee from reclaiming legacies or gifts he has paid under a testament void only for want of form. [Author’s note: evoking example number 4 in CC article 1751]

6. If a party has an exception that destroys the natural as well as the perfect obligation, and, through error of law makes a promise or contract that destroys such exception, he may avail himself of such error; but if the exception destroys only the perfect, but not the natural obligation, error of law shall not avail to restore the exception.

[Italics added]

Echoing CC article 1890, the drafters’ comment beneath CC article 1840 linked the themes of cause and error of law:

As there has [sic] been much diversity of opinion and many contradictory decisions on the effect which errors in law ought to have upon contracts we have thought it proper to offer some positive enactments on the subject [. . .] If an opinion of my right [l’opinion que j’ai de mon droit] is the sole cause of my agreement and that opinion is false, there is then no cause, no more than there would be if the error bore on a substantial fact, which was the cause of the contract. [Italics added]

31 For the link between error and cause in the current Civil Code, see now article 1950 “Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.”

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X. Unjust Enrichment: A New Ingredient in Analysis of Natural Obligations

By relying upon natural obligations to blunt the invalidating force of error of law, the Civil Code cast doubt on whether a debtor could reclaim from a recipient what he had paid or delivered in error. The doubt cannot be dispelled if our analysis remains within the confines of CC article 1840. Interpretation in pari materiae justifies our reference to the Civil Code regulation of quasi-contracts. Isolated from other articles in the title “Payment of a Thing Not Due” CC article 2280 authorized a debtor to reclaim what he had paid in error: “He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.” Reinforced by CC article 2280, CC article 2282 echoed the themes of CC article 1840 and CC article 1890 by linking error with cause: “A thing not due is that which is paid on the supposition of an obligation which did not exist, or from which a person has been released.”

Interpretation in pari materiae requires us to return to CC article 1752, for besides producing an organizing principle noted previously, the article qualified the quasi-contractual rule announced in CC article 2280:

CC Article 1752[1]: No suit will lie to recover what has been paid, or given in compliance with a natural obligation.

The Civil Code did not assign priority to either CC article 1752 or CC article 2282. Assuming the civil code’s organic coherence, then CC article 17 encouraged harmonization of the articles whenever possible. Supposing that a debtor could not have been sued for performance of the obligation, then once he had paid, could he recover the payment? Neighboring articles regulating quasi-contracts should dispel our confusion. As in the regulation of “term,” the exception as a means of defense had an important role in describing the debtor’s legal posture: According to CC article 2281: “To acquire this right [the right to reclaim the payment], it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery.”

CC article 2285 provided:

But this exception [that would block the plaintiff’s claim] must be such that it shall extinguish even all natural obligation. Thus he who, having the power to plead prescription, shall have made payment, cannot claim restitution.

Visualizing the border between recoverable and unrecoverable payments depends upon grasping the difference between natural obligations and civil obligations, a theme introduced at the beginning of our analysis of natural obligations. By invoking the exception, CC article 2284 foreshadowed the regulation of natural obligations in the Code of Practice:

The payment from which we might have been relieved by an exception that would extinguish the debt, affords ground for claiming restitution. [Italics added]

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Although CC article 2284 did not describe in detail the kind of exception required to extinguish a debt, it confirmed the possibility of such relief (a peremptory exception would be the preferred defense.) Consistently with CC article 1840, CC article 2285 amplified the nature of the exception by declaring that it “must be such that it shall extinguish even all natural obligation” (author’s note: in addition to civil obligation).32

XI. Prescription and Natural Obligations

Before exploring the Code of Practice for its resonances with the Civil Code regulation of natural obligations, let us double back to CC article 1751 to reinforce the link between prescription and natural obligations mentioned in CC article 2285: CC article 1751 [3] provided: “When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.”

The first seven words of CC article 1751(3) supposed that the obligation in question would otherwise be fully enforceable if the prescriptive period had not run. Let us return to CC article 1840 [error of law] for it too illuminated the procedural role of the exception based upon prescription:

5. A promise or contract, that destroys a prescriptive right, shall not be avoided by an allegation that the party was ignorant or in an error with regard to the law of prescription;

6. If a party has an exception, that destroys the natural as well as the perfect obligation, and, through error of law, makes a promise or contract that destroys such exception, he may avail himself of such error; but if the exception destroys only the perfect, but not the natural obligation, error of law shall not avail to restore the exception. [Italics added]

As our reading of CC article 1840 shows, analogical interpretation permits reading a code on different levels and projecting the code’s meanings in numerous and sometimes unexpected directions. We made this point earlier in describing the centrifugal character of analogy. Besides linking cause with error and natural obligation, CC article 1840 reinforced links between the Civil Code regulation of prescription and the Code of Practice regulation of exceptions.

32 For current regulation of unjust enrichment, see now CC articles 2298 to 2314 (i.e., Book III, Title V, Chapter 2 of Enrichment Without Cause).

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XII. The Code of Practice Regulates Obligations in Terms of Actions and Exceptions (CP articles 9, 16, 17, and 18)

As kindred texts originating from a single team of drafters, the two codes amplified each other. Interpretation in pari materiae enables us to discover their common design. The Code of Practice presupposed the Civil Code’s regulation of natural obligations. Without an analysis of the Civil Code’s regulation of natural obligations, the counterpart regulation of the subject in the Code of Practice would be unhelpful. For its part, the Civil Code regulation of natural obligations presupposed the Code of Practice’s procedural apparatus of actions and exceptions. A debtor’s counsel would be functioning in a vacuum if he were unaware of offensive tactics whereby an obligee enforced a duty and defensive tactics urged by an obligor to defend his position. In the Civil Code, however, the interplay between actions and exceptions was incidental to the regulation of natural obligations which stood in the foreground. By contrast, in the Code of Practice, actions and exceptions stood in the foreground while natural obligations were introduced incidentally to illustrate the operation of actions and exceptions.

CP article 9 linked the definition of civil obligation in CC article 1749 with the idea of civil action: “A civil action is one which is brought for private interest, such as a suit to obtain the payment of a sum due, the restitution of property, or reparation for an injury done by words or action.” CP article 20 illuminated the offensive/defensive relationship between a right of action and a corresponding exception: “He who has a right of action to claim what is due to him has a right yet more evident to use the same cause of action as an exception, in order to preserve his rights.”

Having laid the groundwork of actions and exceptions, CP article 17 then evoked by analogy the concept of natural obligation first encountered in CC article 1752[1]: “Natural obligations give no right of action, but what has been paid pursuant to those obligations is not subject to repetition” (i.e., restitution).33

XIII. CP Article 17: An Index of Illustrative Character of List in CC Article 1751

Earlier we noted that the Civil Code of 1825 did not state clearly whether the list of natural obligations in CC article 1751 was illustrative or exclusive. Read in isolation, the list in CC article 1751 seems exclusive (“natural obligations are of four kinds”). Unlike CC article 1751, however, CP article 17 equivocated on the number of natural obligations. Indeed, the phrasing of the French version of CP article 17 signaled that the list was illustrative. “On appelle obligations naturelles, celles pour lesquelles la loi n’accorde point d’action; telles sont celles. . . [such as those]”. More explicit than the English version of CP article 17, the French locution (“those are natural obligations, for which the law gives no right of action; they arise on contracts entered into by persons who”) suggests the possibility of identifying

33 See Hill v Kernion, 7 Rob. 522, 1844 WL 1465 (relying upon analogy between CC article 2281 and CP article 18 (16) to deny recovery of payment determined to have been made in recognition of natural obligation).

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new natural obligations in the fullness of time. By the mid 1850s, Louisiana courts were well on the road to identifying new natural obligations. With the help of CP article 17, the Louisiana legal community might have been spared long debates on whether the original list of natural obligations in the Civil Code was exclusive or illustrative. In 1985, a new code article on natural obligations finally put the issue to rest by declaring the list in CC article 1751 illustrative.34

Promoting analogical interpretation of the two codes, CP article 18 confirmed a link between natural obligations and payment in error that the Civil Code had introduced: “He who pays through error, what he does not owe, has an action for the repetition of what he has thus paid, unless there was a natural obligation to make such payment[.]” CP article 18 also added a rule on burden of proof: “but he must prove that he paid through error, otherwise it shall be presumed that he intended to give.”

CP article 18 implied that a transferor’s recovery of a payment made in error required his act to have been prompted by a sense of duty or onerous cause.35 Otherwise, his act was presumed a liberality motivated by a gratuitous cause (animus donandi). Until this point, our survey of natural obligations has not discussed donations. By referring to this category of gratuitous contracts, however, the Code of Practice amplifies our understanding of contrasts between cause and consideration. A donation is a contract like any other in the sense that it requires consent of the parties, their contractual capacity, a lawful object, and a lawful cause. Unlike an onerous contract, however, a donation is a unilateral contract animated by a gratuitous cause; this contrast explains how an obligor may become obligated without receiving a return benefit. By invoking the Civil Code regulation of donations, CP article 18 recalled the difference between gratuitous cause and onerous cause. One who transferred a payment to another person may have acted out of a valid gratuitous cause and expected no return benefit for his gesture. To recover the payment the obligor had to prove that “he [. . .] paid through mistake, believing himself a debtor,” [CC article 2280] and that the mistaken payment was prompted by an onerous cause. If the obligor could not bear the burden of proving his error, then he would be presumed to have made a valid donation to someone who was the object of his generosity. In this last case, the transferor of the payment was not a debtor and the recipient of the payment was not his creditor.36

34 See now current CC article 1762.35 Current CC article 1761 captured the policy expressed in CP article 18. CC article 1761 provides: “A natural obligation is not enforceable by judicial action. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not be reclaimed. A contract made for the performance of a natural obligation is onerous.”36 The current Civil Code articles reinforce this theme. According to comment B, current CC article 1762, the present formulation of article 1762 “is intended to enhance the usefulness of the concept of natural obligation in distinguishing between mere generosity, which constitutes a gratuitous cause, and obedience to a moral duty, which may determine the cause as onerous.” West L S A CC article 1762, annotated. To the same effect, see also comment D, current CC article 1761.

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XIV. Specific Performance: Explicit Overlap Between the Codes

Until this point, the code links that we have identified have been established by implication. In the first example, these links were suggested by repetition of a single word (e.g., “term”); in the second example, by phrases (e.g., natural obligations). Sometimes, however, the drafters expressly forged links between the codes. We shall explore examples of these explicit links in the Civil Code regulation of remedies, in which the reader was directly guided to the regulation of judicial practice in the Code of Practice.

XV. Ambiguities on Standards for Specific Performance

Unfortunately, the regulation of remedies in both codes contained ambiguities that bred judicial confusion; and this confusion has lingered nearly two centuries after their adoption.37 Evidencing the hazards of invention in a mixed jurisdiction, these remedial ambiguities seem emblematic of contrasting civilian and common law conceptions of judicial discretion. Even if the initial regulation of remedies had been completely consistent, the courts over decades would likely have faced interpretive problems when the two codes were no longer yoked together. Dating from 1808, the regulation of remedies in the Civil Code endured in recognizable form until the obligations revision of 1984-85. By contrast, the state legislature over many decades modified the Code of Practice, and in 1960, replaced it with the Code of Civil Procedure. This new code continued much of the procedural terminology that originated the Code of Practice of 1825. But the Code of Civil Procedure also reflected the rising national influence of the federal rules of civil procedure. By contrast, the Civil Code never felt a thorough national impact from a unitary body of substantive rules. Though the Louisiana drafters watched carefully legal developments under the Uniform Commercial Code, its scope is much narrower than that of the Civil Code, and its influences upon the Civil Code have been episodic and relatively slight.38

XVI. Compulsory Execution in the Codes of 1825

Blending civilian and common law terminology, the codes’ combined regulation of specific performance generally projected a policy of compulsory execution that we would recognize today. Following a traditional English distinction between ordinary and extraordinary relief, some provisions in each of the codes couched the preferred remedy in terms of whether a monetary award could repair a claimant’s injury.39 If the monetary remedy sufficed to repair 37 For discussion of the misunderstandings in light of doctrine, see Weingarten v North Gate Mall 404 So 2d 896 (1981). 38 For the influences of the UCC upon the Louisiana Civil Code, see generally, Shael Herman, E Pluribus Unum: The Paradox that Safeguards Louisiana’s Mixed System, 78 TULANE. L. REV. 457 (2003).39 Although Louisiana has never had a court of equity or chancery modeled upon the English courts, the Louisiana Supreme Court was from an early date conversant with equitable doctrines of performance that had originated in English law. In accordance with choice- of- law principles, the Louisiana judges applied equitable doctrines to contracts governed by the laws of another state. For example, in Lynch v Postlethwaite, the Supreme

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the harm, then specific performance was denied; if monetary relief was insufficient, then the remedy was granted. But the codes’ regulation of remedies did not consistently follow the English distinction. Sharply limiting the judicial discretion familiar in English law, some code articles shifted toward a familiar civilian analysis that afforded a breach victim rather than a judge discretion to elect a remedy. These articles were based upon traditional civilian distinctions between obligations to give, to do, and not to do.

XVII. Civil Code Preference for Performance to Enforce Obligations to Give

Under the Civil Code of 1825, an inquiry into the proper remedy for breach of contract would have begun by locating the obligation in question within a tripartite classification of obligations derived from the Romanist tradition.40 These categories appeared under two Civil Code subchapters: “Of Obligations of Giving” and “Of Obligations to Do and Not to Do”. Obligations to give and not to do were normally enforceable by compulsory execution, while a breach of an obligation to do was remedied by a damage award. In operation, the lines separating the three categories of obligations were sometimes unclear, and their tripartite classification scheme sometimes might seem artificial. For example, according to the Civil Code of 1825, delivery of a promissory note already endorsed or payable to the bearer was enforceable by specific execution because it fulfilled an obligation to give.41 By contrast, the transfer of a note payable to order and not endorsed, or any other debt requiring an act of transfer, constituted an obligation to do. Its breach was remedied by damages, not compulsion. The contrasting remedial treatment is explained in terms of a civilian doctrine that has traditionally insisted that a debtor may not be compelled to perform an act that would intrude upon his personal freedom.42

Court granted the vendor an order of specific performance of a contract for the sale of a steamboat. The relief went well beyond standard relief for a buyer’s breach; for without inquiring into whether the purchaser’s breach had caused the seller irreparable harm, the court ordered the Purchaser to pay the price in the form of a down payment and a series of promissory notes payable at fixed rates. The payments were conditioned upon the seller’s delivery of a bill of sale or deed for the vessel’s transfer. 7 Mart o s 293. Notably, the relief in Lynch more closely followed standard enforcement for an obligation to give under the Civil Code than the relief based on English equitable standards. For general background on equity in Louisiana, see VERNON PALMER, THE LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION 223 et seq (2005), reviewed by Shael Herman, Under My Wings Every Thing Prospers, supra note 8.40 “The object of the performance is the criterion for the traditional classification of obligations in three categories, namely, obligations to give, obligations to do, and obligations not to do. In the first two categories the performance consists of positive acts such as giving or doing something, while in the third category the obligor is bound to perform through negative acts of abstention or forbearance.” See SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.4 (2001). For background on the Roman classifications, see generally Shael Herman, Specific Performance: A Comparative Analysis I, 7 EDINBURGH L. REV. 5-26 (2003), translated in Shael Herman, Pacta Sunt Servanda trifft auf den freien Markt: Die Durchsetzung von Versprechen im spanischen und US-merikanischen Recht, Zeitschrift fuer Rechtsvergleichung, Internationales Privatrecht und Europarecht 94-105 (ZfRV 2005/16].41 CC article 1919.42 The principle pacta sunt servanda (promises shall be kept) is generally invoked for enforcement of promises to give or transfer. The principle of pacta sunt servanda was limited by nemo potest cogi ad factum praecisere, a principle that has traditionally opposed enforcement of personal acts. The principle of nemo potest shields a recalcitrant obligor from contempt sanctions and arrest. For the Spanish understanding of the two slogans, see generally, J.J. Saenz Soubrier, La ejecución en la Nueva Ley de Enjuiciamiento Civil. Título Ejecutivo. Ejecución provisional y definitiva. in Congreso Constituyente de la Asociación Española de los Abogados Especializados

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XVIII.Code of Practice Remedial Scheme Rests upon the Tripartite Division of Obligations in the Civil Code (CP 628)

With the phrase “practice of the courts”, CC article 1921, located in a chapter entitled “Obligations to Do and Not to Do” sent the reader to the Code of Practice chapter entitled “Of the Execution of Judgments Which Require Something to Be Given or Something to Be Done.” In that chapter, CP article 628 echoed the tripartite classification of obligations as a basis for distinctions among execution orders:

Orders of execution are different, according to the nature of the judgments to be executed; for these judgments may direct that a thing shall be given, or a thing be done or omitted, or a sum of money be paid, and this variety, subjects the execution to different rules. . .

XIX. Enforcing Obligations to Give (CP articles 630-635)

Following the principle of pacta sunt servanda, the Civil Code preferred compulsory performance for enforcing obligations to give. Like modern Spanish law,43 the Civil Code of 1825 presumed the victim was the master of his claim, and that there had to be good reasons for the court to deny his election of relief. This presumption would significantly reduce a judge’s discretion in a familiar common law process of weighing the equities. Furthermore, the Civil Code, unlike common law doctrine, did not insist upon a calculus of market efficiency that would normally prompt the breach victim to mitigate his damages. As an index of the Louisiana Civil Code’s disinterest in mitigation of damages, the doctrine was not codified until the 1985 revision of obligations, though before that year references to mitigation of damages could be found scattered about Louisiana jurisprudence.44

Lawyers trained in the common law might be frustrated by the absence from the Civil Code of a criterion of inadequacy of damages, the time-tested equitable standard for granting a compulsory order. Instead of referring to this standard, CP article 630 prescribed the steps leading to enforcement of a writ of possession:

en Responsibilidad Civil y Seguro, at www.asociasionabogadosrcs.org/ponencias/pon6.pdf, last visited November 6th, 2007. 43 See, generally, Francisco L Grimalt, Remedies, in INTRODUCTION TO SPANISH PATRIMONIAL LAW 91 (ed. S Van Erp & A. Vaquer, 2006); RAFAEL SERVER, EL CUMPLIMIENTO FORZOSO DE LAS OBLIGACIONES (1995); Shael Herman, Specific Performance: A Comparative Analysis, 7 EDINBURGH L. REV. 5-26; 194-217 (2003).44 See now current CC article 2002 and cases in accompanying comments. It is difficult to generalize about the prevalence of mitigation among different civilian systems. For example, the Italian Civil Code, enacted in the 1940s, has a strong commitment to mitigation of damages. See generally, CARLO ROSELLO, IL DANNO EVITABILE. By contrast, modern Spanish law has almost none.

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When the judgment directs one of the parties to deliver an estate to the other, the clerk must issue a writ of possession, by which the sheriff shall be enjoined to put him, in whose favour the judgment was rendered, in possession of the estate and the appurtenances belonging to it, according to the judgment.

Presumably a petitioner who relied upon CP article 630 would not have to defend his choice of compulsory relief. As the victim of the breach, he occupied the moral high ground, and the breaching party could not challenge the choice. Accordingly, the victim was entitled to have the court respect his request for specific performance.

CP article 632 afforded an obligee draconian remedies against a recalcitrant obligor who resisted a writ of possession:

the sheriff shall [NB: not may] proceed to put in full possession of the estate the party who has obtained the judgment, and shall compel the other to depart, even by breaking open the doors, if it be necessary, and by summoning the ‘posse comitatus’ if resistance be made.

CP article 635 amplified the obligee’s coercive remedies:

If the party, who has been condemned to deliver a slave or other object, conceals it, or carries it out of the jurisdiction of the court, so that the sheriff cannot seize it, the party, in whose favour the judgment was rendered, shall have the choice either of instituting an action for damages, or of compelling a specific execution [exécution spécifique] of the judgment, by obtaining a sequestration of his other property, until he has satisfied it, in the same manner as is practiced on judgments directing a specific performance, as is stated below [French: une condamnation de faire ou de ne pas faire une chose déterminée, ainsi qu’il est dit ci-après]

Although the Code of Practice authorized draconian remedies to exact an obligor’s compliance with an order of possession, it did not expressly authorize injunctive relief against him. Such relief as one could find in the Code of Practice was in rem, not in personam. An order in favor of the obligee might still affect the object described in the judgment, and perhaps the obligor’s other assets through a sequestration. It is true that the Code of Practice envisioned an obligor’s presence during the execution process, but the court would not have affirmatively ordered him to do anything; rather, the obligor seems to have been viewed as a bystander observing the sheriff’s actions. CP article 633 suggested the obligor’s passive role:

The party, against whom the judgment has been rendered, shall be considered to have complied with it, by quitting the estate, and leaving the other party free to take possession. [Italics added]

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XX. A Criticism: Absence of Injunction a Defect in Regulation of Specific Performance

From a common law perspective, the absence from the Code of Practice of authorization of an injunction against a recalcitrant obligor, backed up by a contempt sanction, seems a shortcoming in the regulation of compulsory performance. Unhindered by an injunction, a recalcitrant obligor could frustrate a judgment of possession by mortgaging or selling the property before recording or publishing the judgment. In that case, even if the debtor “quits the estate,” as CP article 633 required, the judgment creditor might end up with real estate that he could not exploit or occupy. Denied possession of the property by a senior mortgagee, a judgment creditor in an extreme case might still have to service the debt encumber the property.

If the Code of Practice had authorized affirmative injunctive relief, then the judgment debtor could have been ordered personally to transfer the property upon the purchaser’s payment of the price. The order might also have prohibited the obligor from negotiating with a third party the sale or mortgage of the property. To compel the obligor to perform, the injunction could have been coupled with several ancillary measures: for example, a contempt citation against the obligor that was repeatedly enforced by jail sentences, or liquidated damages that built up daily, like the French astreintes. Yet, this Code of Practice regulation of the debtor’s duty to comply curiously did not mention contempt sanctions against the debtor. The injunction was addressed to the sheriff, who presumably would not have been cited for contempt. Sequestration of a debtor’s assets, breaking in the doors of his storehouse, and assembling a posse comitatus were concededly powerful tools for pressuring a debtor to comply with the judge’s order. But an order jailing the debtor for his noncompliance would have maximized the court’s control over him by depriving him of all power to resist indirectly the seizure of the estate and its delivery to the creditor.

The absence from the Code of Practice of injunctive relief for enforcing obligations of giving is puzzling. To a civilian, the absence might seem a token of nemo potest cogi ad factum praecisere.45 But this answer would be wrong or unduly simplistic. The absence was surely not due to the drafters’ lack of information about injunctive relief; indeed, the drafters understood injunctive relief and contempt sanctions very well. The Civil Code devoted a title to injunctions. Many of the Civil Code provisions were mirrored in CP articles 296-309; these provisions spelled out specific forms of injunctions as well as measures for enforcement through contempt and fines.

It is true that the injunctions contemplated by the Code of Practice were prohibitory rather than affirmative, but the enforcement sanctions including imprisonment would have been identical in either case. Furthermore, the Code of Practice contained a title “Of the Arrest of the Debtor.” Consisting of twenty-nine articles, the title detailed both the grounds for arresting the debtor, and the means by which he could be liberated from confinement.

45 See note 40-42 supra.

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XXI. Speculation about the Influence of Spanish Law upon Regulation of Specific Performance

Given the importance of Spanish law at the time of the codifications under consideration, the drafters could have visualized compulsory relief along the lines of modern Spanish law that regards performance as a standard remedy and backs up this remedy with an embargo. The law of Spanish Louisiana provided other coercive options that bore a distinct resemblance to the contempt sanction. For almost four decades immediately before the Louisiana Purchase, “Luisiana” was governed by Spanish laws including the Ordinances and Instructions of Don Alejandro O ‘Reilly, the Spanish governor.46 O’Reilly’s Ordinances contained a template for a remedy analogous to contempt against a recalcitrant obligor. Bearing earmarks of Spanish laws in ultramarine provinces such as Louisiana (e.g., alguazil mayor, different rules applicable to different social classes and professions), O ‘Reilly’s regulation of executory proceedings authorized jailing a debtor for certain forms of disobedience to a court order: 47

[The judge] shall order immediate execution, by addressing an order in writing to the alguazil mayor, directing him to summon the debtor to pay the demand, or in default thereof his property shall be seized [. . .] By virtue of the [. . .] order the alguazil mayor shall summon the debtor; if [the latter] complies the execution shall cease. If otherwise, his property shall be seized and held in custody by the depositary general; unless he shall give good and sufficient security for the payment of the sum in which he is condemned by the sentence. But if he shall not give security aforesaid, or if he has not property sufficient, he shall be imprisoned, unless exempted therefrom by the privilege of nobility, which is also enjoyed by the military, regidors, officers of finance, women, lawyers, physicians and other distinguished persons. [Italics added]

XXII. Coercive Measures in Las Siete Partidas

Available in 1820 in an English translation prepared by Louis Moreau-Lislet and James Brown under a commission from the Louisiana legislature,48 the Siete Partidas, III, Title VIII authorized pressuring a debtor by seizure of his assets. Like modern measures to effectuate quasi in rem jurisdiction, judicial assentimientos [seizure], could be employed to pressure a debtor to answer a suit he had been avoiding by granting a petitioner possession of the debtor’s property. The order would first affect movable assets; if seizure of these movables did not sufficiently bend the debtor’s conduct to the court order, then the creditor could also seize his immovables.

We may never know whether Spanish law influenced the drafters’ ideas on compulsory performance. If, indeed, there was a Spanish influence, it is difficult to point to an

46 For background on O’Reilly’s legislation, see generally, Under My Wings, supra note 8, 1563-66.47 For background on foreclosure by executory process under O’Reilly’s legislation, see Under My Wings, supra note 8, 1566.48 On the Louisiana translation of Las Siete Partidas as a user’s manual for the early civil codes, see generally Under My Wings, supra note 8, 1559-1563.

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authoritative text because Spanish law was not embodied in a national civil code until 1889. On a subconscious level, medieval Spanish remedies perhaps affected the drafters’ thinking. As a law commissioner, Moreau Lislet would have been ideally situated to have taken guidance from Spanish doctrine. Yet, despite the seizure provisions we have quoted above, the translators did not translate the Partidas regulating assentimientos because, as the translation stated, “they [were] not in force here.” According to the translators’ note, “this title related to the compulsory process by which the plaintiff is put into possession of the property of the defendant who refuses to appear in court upon citation. As no part of it is in force it is not therefore translated.”

XXIII. Obligations to Do (CC articles 1920, 1921)

The phrasing of the regulation of obligations to do suggests that common law doctrine exercised considerable influence upon the drafters’ thinking. Passing from regulation of obligations “to give” to obligations “to do” the English version of the Civil Code notably employed the common law term, “specific performance” (French: “exécution spécifique”) CC article 1920 provided:

On the breach of any obligation to do, or not to do, the oblige is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require dissolution of the contract [. . .]. [Italics added

English doctrine seems to have especially influenced the phrasing of CC article 1921:

In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts. [Italics added]

The Civil Code’s guidance for obligations of doing and not doing could have been more precise than it was. The goal of the Revision of 1984 was to make the guidance more precise.49 By limiting specific performance to “cases which permit it,” CC article 1920 seems to have shifted away from a civilian classification scheme that we had earlier identified for obligations to give.50 To the contrary, the article seems to have conferred on the judge a discretion to balance equities that was familiar in common law doctrine. Assuming the drafters’ intention to confer this judicial discretion, the phrase “cases which permit it” may be understood as a shorthand instruction to grant damages or specific performance depending upon the anticipated reparability of the prejudice by monetary award. This instruction seems 49 See SAÚL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.14 (2001). 50 According to Saúl Litvinoff, the phrase cases which permit it could have been better translated as “if the execution is possible.” S. Litvinoff, Obligations s 168 in 7 LA CIVIL LAW TREATISE 310-315 (1975), cited in Weingarten v North Gate Mall, 404 So2d 896, 900 (1981)

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to have been enlarged by the phrase in CC article 1921 “where this would be an inadequate compensation.” This last phrase could have easily been understood as following common law doctrine by granting a judge broad discretion to assess the reparability of the harm.

The last quoted phrase of CC article 1921 recalled the division between ordinary and extraordinary relief familiar in English doctrine. But we ought not too hastily conclude that these articles shifted fully to English standards for specific relief. As Saúl Litvinoff has argued,51 CC article 1921 may have mistranslated the French original. Assuming the mistranslation, then the article merely articulated a standard of objective possibility by asking whether an obligor had power to perform in an absolute sense, not whether a compulsory order would unduly burden the obligor’s activities or the court’s supervisory powers.

If this last assumption is correct, then CC article 1920 would dilute a judge’s discretion to order or deny performance based upon reparability of the damages. The article’s ambiguity would have allowed a civilian and a common law lawyer to reach opposed conclusions based upon the same language. The analyses of the rival traditions would come down to a matter of judicial discretion about which the code did not speak clearly. The common lawyer’s conclusion would be along the lines already discussed. Applying a traditional Romanist standard, however, a civilian could conclude that the phrase “cases which permit it” assumed that the requested performance was objectively possible, i.e., the contractual object existed; the obligor had the power to perform, and the obligee still desired the performance. If, so the civilian would argue, the court lacks the discretion to deny the remedy sought by the aggrieved plaintiff, then the clause “cases which permit it” is not an instruction to inquire into the burdensomeness of the performance for the obligor, the feasibility of having the creditor mitigate his damages, or the difficulty of judicial supervision of the order.52

As suggested at the beginning of this section, the ambiguous regulation of compulsory execution in the two codes is likely productive of a sort of confusion that can occur in a mixed jurisdiction in which the drafters, marching to different drummers, have afforded courts very different methods for determining proper enforcement remedies. Taken together, CC articles 1920-21 should have prompted the aggrieved victim to reflect soberly upon the risk associated with assuming either an approach based thoroughly upon common law doctrine or the civil law approach to remedies for breach. The current obligations articles should render his choice of relief clearer than it was under the Code of Practice. But even today, judicial tests for performance remedies seem inconsistently applied. To avoid granting specific performance, Louisiana courts seem sometimes to embrace a deus ex machina that encourages sidestepping enduring questions first raised in the two codes.53

51 See Justice Dennis’s scholarly analysis in Weingarten v Northgate Mall, 404 So2d 899-901. 52 These civilian arguments are based upon 2 S. Litvinoff, Obligations, Section 168, 7 LA CIVIL LAW TREATISE 310-315 (1975), cited in Weingarten v Northgate Mall, 404 So 2d 899-901.53 Weingarten v Northgate Mall is instructive because the court in that case seems to have welcomed a deus ex machina. On initial impression, the facts presented a strong case for specific performance: the landlord’s actionable breach consisted of an obligation not to do, for which specific performance would have been the appropriate remedy. As is typical in shopping center leases, the landlord affirmatively covenanted not to expand its improvements without the prior written consent of the tenants. Such a covenant typically contemplates that a landlord’s expansion will at a minimum reduce available customer parking below a stipulated ratio (e.g., so many spaces for so much of tenant’s leased footage). Furthermore, the landlord’s construction work could have

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Curiously, at least to a civilian, the deux ex machina might even involve reproaching an innocent breach victim although his proper conduct should put him on the moral high ground and thus beyond reproach.54 Though Louisiana courts have regularly declared specific performance the primary or preferred remedy for breach of an obligation to give, the victim in many instances must still bear the burden of showing his entitlement to the remedy. Specific relief is surely not his for the asking, it is fair to expect that a typical Louisiana court, in exercise of its considerable discretion, would insist upon balancing equities along lines familiar in English doctrine. In some cases the court could require of the plaintiff security for specific relief as well as proof of his mitigation efforts. Assuming the likelihood of this judicial behavior when a plaintiff requests specific performance, then the avowed judicial commitment to specific performance could ring hollow for many petitioners. In my opinion, our law has gone too far down an Anglo-American road for the current Civil Code standard

seriously disrupted the existing tenants’ businesses. By requiring the landlord to obtain the tenant’s written approval, the parties could have negotiated arrangements to minimize harm from disruptions. According to the version of the Civil Code in force at the time that the Weingarten facts occurred, obligations not to do were compellable by specific performance and injunctions. Furthermore, Weingarten and the landlord had stipulated that in the event of default, specific performance would become available without a showing of irreparable harm. There was also no reasonable way for the plaintiff to have mitigated its damages from the breach. Weingarten sued the landlord to halt construction of a new expansion of the mall, and to demolish all buildings erected in violation of the landlord’s obligation. The court of appeal confirmed an injunction against the defendant, finding that specific performance was warranted; it noted that the parties had contracted for the remedy of specific performance without a showing of irreparable harm. The supreme court agreed that the breach had occurred, but found specific performance inappropriate because of the financial burden imposed upon the breaching landlord. The court also found that the demolition of the offending buildings would have unduly taxed the court’s supervisory powers unreasonably. The judges were impressed by the fact that third parties in good faith (e.g., lenders and new tenants) had acquired rights in the property in reliance upon the legality of the enlarged improvements. The deus ex machina to which I referred appeared in Justice Dennis’s brief, off handed reproach of the plaintiff for a procedural mistake: on being denied preliminary relief by the trial court, the plaintiff did not promptly take an appeal of right to challenge the correctness of the trial judge’s denial. Instead, the plaintiff waited to appeal the ruling until after the merits trial seeking a permanent injunction. By that time, observed the Justice Dennis, the landlord’s expansion project was nearly complete and new stores therein had opened for business. Query, at the time of the original suit, could the plaintiff have filed a lis pendens in the public records to notify the new tenants that they were building at their own risk? The decision does not say. For our present inquiry, evaluating the opinion is also complicated by the fact that the civil code articles at issue dated back to the Civil Code of 1825, while the relevant procedural regulation of injunctions, inspired by common law standards and the federal rules of civil procedure, appeared in the Code of Civil Procedure enacted in the 1960s.54 This suggests a type of moral hazard in which the law seems to favor the wrongdoer whose actions have produced the damages that the victim complains of.

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for specific performance significantly to strengthen the plaintiff’s hand.55 This review of the codes of 1825 suggests that we have been traveling that road for almost two centuries.

XIV. In Conclusion: A Cautionary Note

It would be helpful to know whether the examples of analogical interpretation suggested in this essay are emblems of a broader phenomenon in the codes. Especially with the Code of Practice, care must be exercised with the analogical method for it is not a universal tool. Some titles of the Code of Practice (e.g., prerogative writs, jury trials, habeas corpus) codified common law institutions not elaborated in the Civil Code. Well known in Louisiana even before statehood, these institutions were meant to give Louisiana a face familiar to other states and the federal government. I doubt that these institutions would respond well to analogical interpretation. Putting these institutions aside, however, the Code of Practice still contained several hundred provisions based upon a civilian lexicon. At least the first four hundred fifty articles fit this description. By analogy, these articles should yield many links with the Civil Code of 1825. As we have shown with “term”, for example, a researcher could trace through the codes the use of any talisman or term of art (e.g., synallagmatic, aleatory). Often the conceptual framework of a particular Civil Code chapter (e.g., mortgages) presupposed a related procedural framework (e.g., hypothecary action), and these conceptually related regulations in the codes may be analyzed in tandem. An earlier paper identified in both codes a parallel regulation of injunctions for which analogous interpretation was indispensable.56

Beyond the scope of this paper, it would be interesting to categorize and evaluate cases in which Louisiana courts recognized analogies between the Civil Code and the Code of Practice. For example, in Soulie v Soulie,57 the defendant was sued in the probate court as curator of an absentee. The Supreme Court ruled that the probate court lacked powers other than those specially delegated by statute. It found that CP articles 924, 925, 963, and

55 For the Civil Code’s current standard for specific performance, see now CC article 1983. Upon an obligor’s failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee. Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court “To reinforce the policy of article 1983, comment a declared that a “claimant has a right to specific performance rather than a mere right to appeal to the discretion of the court.” Yet, despite this policy, subsequent cases have made clear the judicial intention to retain discretion over remedies. In Concise Oil & Gas Partnership v Louisiana Intrastate Gas Corporation, 986 F 2d 1463 (Cir 5), a seller sued for specific performance of a gas contract. The court confirmed that specific performance was the preferred remedy, but that the remedy could be withheld when specific relief was impossible, when inconvenience or cost of performance was greatly disproportionate to the resulting damages, when the obligee had no real interest in receiving performance or when the specific relief would have substantial negative effects on interests of third parties. These criteria followed those announced in Weingarten v Northgate Mall. According to the court in Concise Oil & Gas, an order of specific performance was unnecessary because the petitioner had been fully compensated by a damage verdict. Although the court did not mention this point, specific relief for a seller is extremely rare because he cannot sue the purchaser for performance of a duty to pay the price unless the object of the sale has already been delivered to the buyer, leaving only a seller’s executory duty to pay the price. But see Lynch v Postlethwaite, supra note 45.56 See Under My Wings, supra note 8, 1568-1570.57 5 La 26, 1832 WL 947.

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965 regulating the powers of curators did not grant the probate court authority to adjudicate claims against an absentee’s estate. To reinforce its interpretation of the relevant CP articles, the court drew analogies between CP articles and CC article 53. Suggesting that the legislature continued to think of the two codes together long after their enactment dates, the Supreme Court also noted that a legislative act of 1828 simultaneously amended certain articles in both the Civil Code and the Code of Practice.

By concentrating alternately upon clusters of provisions in each code, this essay has sought to demonstrate ways in which analogical interpretation enlarged each code’s meaning beyond limits it would have reached if read in isolation. This exercise in analogy has two interconnected rewards. First, the technique promotes logical coherence and elegance; it aids discovery of principles and policies in the codes that might otherwise remain hidden. Second, the exercise poses a navigational exercise for exploration of two codes no longer in force. Far from an antiquarian curiosity, this exercise, as a vehicle for refreshing in us the thought patterns of our legal ancestors, recalls the unique role of our legal heritage in American law.

Our dependence on an American legal curriculum heavily weighted toward case law puts us at risk of losing our paths among our codes. As lawyers, we read cases by analogy every day; indeed, this is an essential goal of stare decisis, for it assumes that like facts warrant like rulings. Analogical reading of cases is routine, though these are usually the products of different judges who likely never knew each other, may have had different legal philosophies, and lived at periods remote from each other. If these obstacles do not hinder our exercises in analogy, then a fortiori we should read the subject codes by analogy because they were created by a single team of commissioners who conceived them as a unitary project.

Cite as: Shael Herman, The Uses of Analogia Iuris in the Louisiana Code of Practice (1825), vol. 12.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2008), <http://www.ejcl.org/123/art123-2.pdf>.

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