Comment by Patrick D. Gallaugher, Jr.
In 1983, the Louisiana Civil Code articles dealing with liberative prescription were rewritten as part of the legislature's continuing effort to modernize and simplify the Code. The revisions are intended to restate the basic principles of liberative prescription in simple and concise terms without making any sweeping changes in the law. Twenty-seven lengthy articles have been replaced by fourteen succinct ones. Much unneeded complexity and inconsistency has been eliminated. The precise and axiomatic language of the new articles is an indisputable improvement over the poorly drafted original articles.
It appears the lawmakers wished to avoid making major changes in the law. The official comments report that minimal changes have been made, and a number of proposed changes were rejected. Despite this, a close analysis of the new articles reveals that two well-developed trends in the jurisprudence have been affected and possibly overruled. First, the legislature refused to acknowledge contra non valentem as a statutory principle of law. This court-made doctrine provides for the suspension of the running of prescription in certain instances. It has deep roots in Louisiana jurisprudence and in recent years has had a significant impact on tort litigation. In refusing to recognize contra non valentem, the legislature could be heralding a reappraisal of this doctrine. Second, the revisions overrule a line of cases which applied a thirty-year prescriptive period for actions seeking specific performance of contracts to sell real estate.
The purpose of this Comment is to outline the scheme of the new articles and to apprise the reader of possible important—but unexpressed—changes made to existing law by the revisions.
About the Author
Patrick D. Gallaugher, Jr.
Citation
60 Tul. L. Rev. 379 (1985)