Remission of Debt - Donation Not in Authentic Form

Louisiana Law Review
Volume 31 | Number 1
December 1970
Remission of Debt - Donation Not in Authentic
Form
Donald R. Sharp
Repository Citation
Donald R. Sharp, Remission of Debt - Donation Not in Authentic Form, 31 La. L. Rev. (1970)
Available at: http://digitalcommons.law.lsu.edu/lalrev/vol31/iss1/13
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19703
NOTES
The necessity for resorting to state wrongful death statutes
is eliminated by this decision, although plaintiffs will probably
still be allowed to take advantage of their provisions.45 Moreover, Jones Act seamen's representatives can use the doctrine of
unseaworthiness in wrongful death actions arising in territorial
waters, 46 thereby increasing their chances for recovery. The
practical obsolescence of state statutes removes the dilemma
of trying to "accommodate state remedial statutes to exclusively
maritime . . . concepts," 47 and the resultant uniformity would
"give effect to the constitutionally based principle that federal
admiralty law should be 'a system of law coextensive with, and
operating uniformly in, the whole country.' ,8
The Court chose to await further litigation on the question
of damage computation. State statutes and the Death on the
High Seas Act were suggested as possible criteria for measuring
damages. 49 The Death on the High Seas Act seems more appropriate as it is designed exclusively for maritime wrongful
deaths. In addition, the use of this act would foster uniformity
more than the application of state statutes.
The issues settled by this case are obviously outnumbered by
the ones left unsettled. Admiralty courts are faced with the
unenviable task of fashioning a uniform body of law to govern
maritime wrongful deaths. In order to save the federal courts
the years of effort required to fully implement the Moragne
decision, it would seem that the time is ripe for Congress to
enact a comprehensive regime of law to govern that segment of
society which looks to the water as a mode of income, pleasure
and transportation.
James L. Willams, IV
REMIssION OF DEBT-DONATION NOT IN AuTHENTic
FoRm
The sole heirs and legatees of the owner of a mortgage note
brought suit against the maker of the note and against the Clerk
of Court to have themselves declared owners of the note and to
45. E.g., Admiralty courts traditionally have not followed the common
law custom of jury trials. However, If plaintiffs choose to bring actions in
state courts, a jury trial would seem to be available.
46. See note 21 supra and accompanying text.
47. Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).
48. Id. at.
49. Id. at.
LOUISIANA LAW REVIEW
[VOL. 31
have the cancellation of the mortgage note erased from the parish
records. The note in question was not found among the decedent's effects after his death, but plaintiff's attorney was advised
by defendant's attorney that the note had been left with the
latter to be delivered to defendant in the event decedent died
first and to be returned if not. However, on trial of the case,
the attorney testified that this plan was not carried out and
that decedent had recovered the note and had, three days prior
to his death, delivered it to the defendant. The trial judge held
that it was unnecessary to make a factual determination as to
how the defendant had obtained the note since the result would
be the same either way because, if the note was given to the
defendant after decedent's death, it was an attempted disposition
mortis causa and not in testamentary form; and if given by
decedent prior to his death it was an attempt to make a donation
inter vivos not in proper form and therefore invalid. The First
Circuit Court of Appeal affirmed this decision. McLaughlin v.
Knox, 224 So.2d 491 (La. App. 1st Cir. 1969).
There was no discussion in the court's opinion as to the
effect to be given to Louisiana Civil Code articles 2199 through
2206 dealing with remission of debt, but a careful consideration
of these articles seems essential to a correct resolution of this
case. Remission is prescribed as one method of extinguishing
obligations by both the French Civil Code and Louisiana Civil
Code.' According to the French doctrinal writers remission is
simply the renunciation by the creditor of his right to enforce2
the obligation and is by its nature a voluntary act on his part.
Remission is, however, a contractual act and not simply unilateral on the part of the creditor. 3 The contractual nature of
remission is evidenced by the fact that it requires concurrence
of the wills of the creditor and debtor. That is, the remission
by the creditor and the acceptance of that remission by the
debtor. This concurrence of wills leads to extinguishment of the
obligation, whereas the unilateral act by the creditor of refraining from enforcing his rights under the obligation only serves
4
to allow the procedural bar of prescription to arise.
1. LA. Civ. CODE art. 2130; FRENCH CiV. CODE art. 1234.
2. 4 AUBRY ET RAU, COURS Dr DROIT CIVIL FRANCAIS § 323B at 219 (La. St. L.
Inst. transl. 1965); 2 PLANIOL, CIVIL LAw TREATISE no. 604 (La. St. L. Inst.
transl. 1959).
3. S. LITVINOFF, LOUISIANA CIVIL LAW TREATISE, OBLIGATIONS § 395 (1969);
2 PLANIOL, CIVIL LAW TREATISE no. 605 (La. St. L. Inst. transl. 1959).
4. S. LrrvINoFF, LOUISIANA CIVIL LAW TREATISE, OBLIGATIONS § 359 (1969).
19701
NOTES
The Louisiana Civil Code contains an additional provision
not found in the French code which provides that the acceptance
of the debtor is always presumed. 5 This does not change the
essential characteristic of remission as being contractual in nature by making it a unilateral act. It only provides for a legal
presumption of acceptance thereby making the remission immediately effective. Once made, under Louisiana law, a remission
is not subject to revocation for non-acceptance. 6 This would not
be true in France, and a remission clearly made could be revoked at any time prior to express or implied acceptance by the
debtor.7
Although there is some authority for the proposition that
remission can be an onerous act 8 as when there is a partial remission coupled with a novation or compromise of the remainder,
it seems preferable to restrict remission to an act that is gratuitous in nature. This is in keeping with the general treatment
of remission by the French writers. 9 The Louisiana view should
be no different. If remission of the debt was arrived at by
a bargain process or exchange of equivalents it would be
classed as simply another commutative contract designed to
modify or put at an end the obligation which existed under
the original contract.'0
Although remission is a gratuitous act, hence a donation, no
particular form is required for a remission to be effective. The
authentic act required for donations inter vivos is not necessary
when the donation takes the form of a remission of debt." Article
2199 then should be viewed as an exception to article 153612 in
that it does away with the requirements of form for a donation
inter vivos but does not alter the essential characteristics of the
5. LA. Civ. CODE art. 2201.
6. S. LITVINOFW, LOUISIANA
CivIL LAW TREATISE, OBLIGATIONS
§ 369 at 633
(1969).
7. 2 PLANIOL, Civa, LAW TREATISE no. 605 (La. St. L. Inst. transl. 1959).
8. Id at no. 606.
9. 4 AUBRY ET RAU, COURS DE DROIT CIVIL FRANCAIS § 323B at 222 (La. St. L.
Inst. transl. 1965); 2 PLANIOL, Crm LAW TREATISE no. 606 (La. St. L. Inst.
transl. 1959).
10. S. LITvINOPF, LOUISIANA CIVIL LAw TREATISE, OBLIGATIONS § 360 (1969).
11. 4 AURY ET RAU, COURS DE DROIT CIVIL FRANCAIS § 323B at 223 (La. St. L.
Inst. transl. 1965); S
IUTVINoF,
LOUISIANA CIVIL Lw TREATISE, OBLIGATIONS §
371 (1969); 2 PLANIOL, CVIL LAw TREATISE no. 608 (La. St. L. Inst. transl. 1959).
12. "An act shall be passed before a notary public and two witnesses of
every donation inter vivos of immovable property or incorporeal things,
such as rents, credits, rights or actions, under the penalty of nullity."
LOUISIANA LAW REVIEW
[VOL. 31
transaction as being a pure liberality.' s However, if the remission of debt is intended to be effective upon the death of the
grantor it must be made in testamentary form. The remission
itself need not be in any particular form but only included in
14
a testamentary document.
Under the French view, remission can be either express or
tacit. 15 The Louisiana Civil Code in article 2199 provides for
either conventional or tacit remission. Conventional remission is
defined as being expressly granted by the creditor while tacit is
the voluntary surrender of the original title evidencing the debt.16
According to Planiol, proof of remission of debt is the same as
proof for any other juridical act. 17 So if remission was expressly
granted in France, the debtor desiring to show this would have
to produce either witnesses or written evidence, depending on
the size of the debt,18 to show the fact of an express remission
by the creditor. As to tacit remission, article 1282 of the French
Civil Code provides that the voluntary surrender of the original
title under private signature is considered absolute proof of the
discharge of the debt. 19
Article 2199 of the Louisiana Civil Code does not, in the
same unequivocal language, provide that the voluntary surrender of the original title constitutes proof of the extinguishment of the debt. It does provide though, that remission of the
debt is accomplished in one of two ways, 2° and the second para13. Therefore, other than form, the gratuitous remission would be sub-
Ject to all the usual rules for donations inter vivos such as reduction by the
forced heirs, collation or revocation for any of the causes listed in article
1559 of the Louisiana Civil Code. See LA. Civ. CODE arts. 1493, 1502; see also
2 PLANIOL, CIVIL LAW TREATISE no. 619 (La. St. L. Inst. transl. 1959) for the
treatment of this aspect of the problem in France.
14. S. LITVINOFF, LOUISIANA CIVIL LAw TREATISE, OBLIGATIONS § 371 at 635
(1969); 2 PLANIOL, CIVIL LAw TREATISE no. 609 (La. St. L. Inst. transl. 1959);
Succession of Mathews, 158 So. 233 (La. App. Orl. Cir. 1935). See Note, 9 TUL.
L. REv. 615 (1935) criticizing the holding in this case.
15. 4 AUBRY ETiRAU, COURS DO DROIT CIVIL FRANCAIS § 323B at 223 (La. St. L,
Inst. transl. 1965); 2 PLANIOL, CivIL LAW TREATISE no. 607 (La. St. L. Inst.
transl. 1959).
16. See Hall v. Allen Mfg. Co., 133 La. 1079, 1080, 63 So. 591, 592 (1913).
17. 2 PLANIOL, CIVIL LAW TREATIsE no. 610 (La- St. L. Inst. transl. 1959).
18. A contract for less than 500 francs is provable by oral testimony,
whereas one in excess of that amount requires a writing. 2 PLANIOL, CIVIL
LAw TREATISE no. 610 (La. St. L. Inst. transl. 1959).
19. 4 AUBRY L' RAU, COURS DO DROIT CIVIL FRANCAIS § 323B at 224 (La. St. L.
Inst. transl. 1965); 2 PLANIOL, CIVIL LAw TREATISE nos. 611, 612 (La. St. L.
Inst. transl. 1959).
20. "The remission of the debt is either conventional, when it is expressly granted to the debtor by a creditor either having a capacity to
alienate; or tacit, when the creditor voluntarily surrenders to his debtor
the original title under private signature which establishes the obligation."
19701
NOTES
graph of the article contains no qualifying language which suggests that any other proof than the voluntary surrender of the
original act is necessary. On the other hand, Article 2202 states
plainly that delivery of an authenticated copy of the original
act does not in itself create a presumption that the debt is extinguished but can be used in conjunction with other evidence
to establish such a presumption. This article follows substantially
article 1283 of the French Code. Therefore, it would seem that
the redactors of our Code were following the French scheme
by differentiating between surrender of the original title and
surrender of an authenticated copy. In the first case the surrender
alone is a fact constituting proof of the discharge of the debtor.
In the second case surrender of the copy is only one element
of proof that is necessary to show remission.
An interpretation of the Louisiana Civil Code consistent
with that of the French commentators' interpretion of their
Code seems to require that voluntary surrender of the original
title evidencing a debt be considered proof that the debt has
been remitted. This approach seems to be the one envisioned by
21
the redactors of our Code and is commendable in its simplicity.
Our courts have followed this view on several occasions.
22
In the instant case, the court failed to make a finding of
fact as to the method by which the note was transferred into
the hands of the maker. It thereby bypassed the foundation upon
which a correct decision must be based. Under the view prevailing in the French doctrinal materials and the proper view in
Louisiana, the creditor's case would have stood or fallen on a
resolution of the factual dispute. There is no question in either
French or Louisiana law that if the note had been left with the
attorney for delivery after death, and had been so delivered, it
would have constituted an attempted disposition mortis causa
and would have been invalid because not in testamentary form.28
The contention of the defendant, though, that the note was
personally delivered by the creditor to the debtor prior to the
death of the former, if sustained as a factual finding, should
21. 4 AUBRY ET RAU, COURS DE DROIT CIVIL FRANgAIS § 32313 at 225, particularly n.33 (La. St. L. Inst. transl. 1965); 2 PLANIOL, CIVIL LAW TREATISE nos.
611, 615, 616 (La. St. L. Inst. transl. 1959).
22. Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919); DeL'Homme v. De
Keregand, 4 La. Ann. 353 (1832); Doucet v. Dugas, 165 So. 754 (La. App. 1st
Cir. 1936); See also concurring opinion in Sciambra v. Emblem, Inc., 46 So.2d
631 (La. App. OrL. Cir. 1950) for a discussion of remission generally.
23. See note 12 supra.
LOUISIANA LAW REVIEW
[VOL. 31
have been considered proof that there was a remission of the
debt. The Louisiana jurisprudence supports this view. In perhaps the leading case on this problem, the Louisiana Supreme
Court held that the fact that a mother had given her son several
of a series of mortgage notes prior to her death constituted a
remission of the debt.24 No other proof was deemed necessary. In
other cases where payment of the note has been at issue, the
court has ruled that when the note evidencing the debt is in
the possession of the maker, a presumption of payment is
formed that the payee must overcome. 25 However, where the
note is still in the possession of the creditor, the court has properly applied article 2232 and required proof of the alleged pay26
ment or exoneration from the maker.
In the case of Doucet v. Dugas, the court properly stated:
"The question here presented is one of fact: that is whether or
not plaintiff remitted the debt by voluntarily returning the
note." - 7 Defendant's case failed for lack of proof that the note
had been voluntarily returned. Such a holding is not inconsistent with the requirement of article 2232 that "he who contends that he is exonerated must prove the payment or the fact
which has produced the extinction of the obligation." The very
fact that the debtor has the title which established the obligation
in his possession should be regarded as the fact which has produced the extinction of the obligation, reserving always to the
creditor the opportunity of proving that delivery was not voluntary.2 8 Nor is this interpretation incompatible with Louisiana's
negotiable instruments law, as one of the modes of discharging
instruments provided therein is, "any other act which will discharge a simple contract for the payment of money. '29 It seems
that a remission of debt under the Civil Code should be such
an act.
Donald R. Sharp
24.
25.
26.
27.
Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919).
Hughes v. Hughes, 170 So.2d 251 (La. App. 4th Cir. 1964).
Gulf States Fin. Co. v. Moses, 56 So.2d 221 (La. App. 2d Cir. 1951).
165 So. 754 (La. App. 1st Cir. 1936).
28. 4 AuBRY Er RAU, COURS DIE DROIT CIVIL FRANCAIS § 323B at 225 (La. St.
L. Inst. transl. 1965).
29. LA. R.S. 7:119(4) (1950).