Paper by Shael Herman
The Louisiana Civil Code has undergone piecemeal modernization for the past decade. Beginning in 1976 with the revision of personal servitudes, the legislature has gradually replaced all of Book II, “Things and the Different Modifications of Ownership.” In January, 1980, a modernized law of matrimonial regimes replaced provisions then well over a century old. In 1981, there followed a revision of partnership, and, in 1982, a revision of “Occupancy, Possession, and Prescription.” In the summer of 1983, the legislature continued its program of code revision; it began consideration of the repeal both of the obligations provisions that have been effective, practically unchanged, since enactment of the Civil Code of 1825 and of their replacement by a new modernized set of articles. The legislature will further consider these new articles in its 1984 session. This paper demonstrates the merit of several features of the proposed articles and speculates about their potential impact upon the course of Louisiana law. At the same time, using the proposed obligations articles as a model, the paper illustrates the manner in which civilian drafters incorporate certain analogically powerful ideas into the structure of a code to mold apparently disparate provisions together into an organic unity.
To date, the obligations revision is the legislature's single largest effort at code revision. The proposed articles represent a fourteen-year collective effort of the Council and staff of the Louisiana State Law Institute; Professor Saul Litvinoff, reporter and chief drafter for the revision; and a committee of legal scholars, judges, and attorneys. A wide range of influences upon the provisions is apparent. These influences include indigenous legal sources such as provisions of the Louisiana Civil Code previously in force, Louisiana and Anglo-American jurisprudence, the American Law Institute's Restatements of the Law, and the Uniform Commercial Code. Less apparent but equally important influences include Roman law and the civil codes and doctrinal works of at least a dozen foreign countries.
The experience of nearly two centuries since 1804, when the French Civil Code was enacted, has taught that the obligations provisions of most civil codes are like plasma that bathes and nourishes an entire code and its institutions. The obligations articles are traditionally rich in analogies, making them, in Portalis' famous phrase, “fertile in effects.” Because property rules are relatively more prone to imperative provisions than are obligations articles, they are not as useful as the latter for filling gaps by analogy. By contrast, obligations rules are generally suppletive; they fill gaps where the parties have not clearly expressed themselves. In the Louisiana Civil Code, the analogical power of obligations rules is also apparent each time the following shorthand incorporation by reference appears in titles on articles governing special contracts: “In all cases, where no special provision is made under the present title, the contract of sale or lease, or partnership is subjected to the general rules under the title: Of Conventional Obligations.” This provision, repeated with minor variations like a musical refrain, signals the drafters' intention to make the titles on obligations a storehouse of general principles for matters they could not have foreseen. Their approach is not unique. In conjunction with the general part of the German Civil Code, its titles on obligations constitute a storehouse of general ideas that permit expansion of legislative joints to accommodate new circumstances. The Swiss and Italian code drafters likewise sought to make their obligations provisions a source of analogies and general ideas consistent with the legal principles of their respective systems. Elsewhere, I have discussed in more detail the “storehouse” role acquired by the obligations articles of various civil codes. Here it is necessary only to mention that the obligations reporter and his committee, mindful that they could not have foreseen every eventuality, have insured that the proposed obligations provisions constitute a general source of analogies without so labelling them. Accordingly, they have systematically planted throughout these provisions many ideas of potentially general application.
This paper demonstrates how modern civilian drafters, assisted by common sense and a careful review of jurisprudence, have incorporated one such general idea-detrimental reliance-into the proposed obligations articles. Civilians are aware intuitively that code drafters identify key ideas (good faith, unjust enrichment, abuse of right) and build them into the legislative fabric at strategic points to make the code a harmonious unity. But even a casual reader may find intriguing the way in which the legislative drafter sounds a fundamental theme and then replays it in fugue-like patterns in seemingly unrelated contexts. On a more practical level, this paper also speculates on implications for Louisiana jurisprudence of codifying this doctrine. The concept of detrimental reliance, like any other legal idea, is practically meaningless in a vacuum. Hence, this paper first sketches the context of this idea and its common doctrinal variants. Then it examines several new provisions that expressly incorporate the idea of detrimental reliance. Finally, it speculates on how these proposed articles might affect certain factual patterns heretofore resolved without explicit legislative reference to detrimental reliance.
About the Author
Shael Herman. Adjunct Professor of Law, Tulane University and Loyola University; B.A. 1964, M.A. 1965, J.D. 1969, Tulane University. At various times during the past thirteen years, the author has been an editor and researcher for the Louisiana State Law Institute as well as a member of the Law Institute committee charged with the revision of the obligations articles of the Louisiana Civil Code. This essay expresses the author's personal views, except for instances where the official position of the Louisiana State Law Institute is indicated.
Citation
58 Tul. L. Rev. 707 (1984)