^96 Olorn^U ICatu i'rlyofll SJibrary CORNELL UNIVERSITY LIBRARY 924 087 609 073 1 , DATE DUE /iM M —"-y^ QAYLORD PRINTED IN U.S.A. WW Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924087609073 THE FKENCH CIVIL CODE. THE FRENCH CIVIL CODE, WITH THE VARIOUS AMENDMENTS THERETO AS IN FORCE ON MARCH 15, 1895. BY HENRY CACHARD, B.A., AND COUNSELLOR AT LAW OF THE NEW YORK BAR, LICENCl:fi EN DROIT DB LA FACULTY; DE PARIS. BANKS & BROTHERS, Isaw i^ublishetis and Boohselletis, NEW YORK AND ALBANY. 1 895. 4^^ff^, AFFIDAVIT. Republic of France, \ ao City op Paris. HENRY OACHARD, CounseUor at Law of the Federal Courts of the United States of America and of the Supreme Court of the State of New York, and a Commissioner of Deeds for the State of New York, being duly sworn, says, — I am familiar with the French and English languages, and accustomed to translate the same. I have made the annexed translation of the Civil Code of France, as amended and completed since its enactment, and have compared said translation with the originals of said Code and of the amendments thereto deposited and filed at the Department of Justice, Paris, France, and the same is a fall, true, and exact translation of said Code and amendments, and of the whole thereof. HENRY CACHARD. ( SEAL. I Sworn to before me this 15th day of March, 1895. HENRY VIGNAUD, Charge d' Affaires. Embassy of the United States of America, Paris. Sworn before me at Paris, in the Republic ©of France, this 15th day of March, 1895. A. P. INGLIS, Consul. British Consulate, Paris. PEEFACE. My object in translating the Civil Code of France into English is to place at the disposal of the members of the Legal Profession in English-speak- ing countries, a work enabling them to find out and establish what the French law is. For that purpose I have compared my translation with the original records, and have sworn to its correctness. Supplements will hereafter appear, containing the new amendments to the Code. Foreign Courts when called upon to decide questions of French law have sometimes rendered decisions not in accordance with the laws of that country. This book, it is to be hoped, may be found useful in preventing the recurrence of such cases. In remembering the achievements of France's great Conqueror, the Code is not among the works which have contributed the least to his fame, and its eifects will be more lasting than those of his great battles. When presiding over the meetings at which the Articles of the Code were discussed, Napoleon, although not a jurist, displayed such quickness of perception and soundness of views as to astonish those present. \in PEEFACE. Although the Code has been in force for almost a century, few amendments have been made to it, and it is practically unchanged. Those who have practised in a country where the laws are not codified can appreciate the great advantages of a Code. With a Code the Judges apply the law with more correctness, the attorney advises his client with more certainty, the layman has a better knowledge of his own rights, and a great deal of useless litigation is avoided. I desire to thank those who have given me the words of encouragement which are printed here : their testimonial is the best commendation of this work. H. C. Pakis : April, 1895. LETTEE PEOM THE EIGHT HONOUEABLE LOED EUSSELL OF KILLOWEN, Chief Justice of England. on circuit. Newsham House, Liverpool, ISa Mcvrch, 1895. HENRY CACHARD, Esq. Dear Sir, I have not been able to do more than look hastily through the proof sheets you have sent me of your English translation of the French Civil Code. I must, therefore, content myself with saying that the work seems to be carefully done^ and such translation will, I cannot doubt, be found most useful on both sides of the Atlantic. I am, faithfidly, (Signed) EUSSELL OF KILLOWEN. LETTER FROM BARON DE COURCEL, FRENCH AMBASSADOR AT LONDON, AND FORMER PRESI- DENT OF THE TRIBUNAL OF ARBITRATION OF THE BEHRING SEA SEAL FISHERIES. Feench Embassy, London, 18th February, 1895. Dear Sir, You submitted to me, during a recent stay in Paris, the proof sheets of an English translation made by you of the Civil Code of France. These sheets did not remain long enough in my hands to allow me to express an opinion as to your translation. The articles which I examined appear to me to be very correctly reproduced, notwitJistanding the great ■difficulty of finding in the English language the exact equiva- lent for many expressions of French law. But I congratulate you sincerely upon the task which you have undertaken, to place at the disposal of English-speaking people, in all parts of the loorld, the Code Napoleon, ivhich is not only a, succinct and exact work of codification, worthy on that account vf being studied by the jurists of all nations, but, from a ■still more practical point of view, is the basis of the legislation •established in France and a great number of other countries. The multiplicity of international relations now-a-days, and ■the complexity of business matters and interests which spring up between members of different political communities, create a more and more pressing necessity for a knoivledge of the laws ■governing such relations. These different legislations, when better understood, after a more careful and frequent study, will be brought closer together, and will tend to become more ■simple, to the common benefit of mankind. You are contributing to this useful object, and it is in mi/ ■eyes the strongest commendation of your work. Accept the assurance of my distinguished consideration, ALPH. DE COUECEL. TABLE OF CONTENTS. PEELIMINAKY TITLE. PAGE Of the Ptjblication, Effects and Application of Lavs IN General l BOOK I. OF PERSONS. Title I. — Of the Enjoyment and Loss of Civil Eights . 3 Title II. — Of Certeficates of Civil Status . . . 14 Title III. — Of Domicil 35 Title IV. — Of Absentees . 37 Title V. — Of Mabei4.ge 45 Title VI. — Of Divorce 62 Title VII. — Of Paternity and Filiation .... 82 Title VIII. — Op Adoption and Officious Guardian- ship . 89 Title IX. — Op Paternal Authority 96 Title X.— Of Minority, Guardianship and Emancipa- tion .' 99 Title XI. — Of Majority, Interdiction and Judicial Counsel 121 BOOK II. OF PROPERTY AND OF DIFFERENT KINDS OF OWNERSHIP. Title I. — Of Various Sorts of Property. . . .127 Title II. — Of Ownership 134 Title III.— Of Usufruct, Use and Habitation . . 142 Title IV. — Of Servitudes or Land Burdens . . . 154 xii TABLE OF CONTENTS. BOOK III. OP THE DIPFEEBNT WAYS OF ACQUIRING PEOPEETY. PAGE 172 Title I.— Of Successions Title II.— Of Donations Intee Vivos and of Wills . 209 Title III.— Of Conteacts or Conventional Obliga- tions IN General 255 Title IV.— Of Agreements which are formed without Contract ^^^ Title V.— Of Marriage Contracts and of the Respec- tive Rights of Husband and Wife . . 316 Title VI.— Of Sales .364 Title VII.— Of Exchanges 387 Title VIII. — Of Contracts of Letting .... 388 Title IX.— Of Contracts of Partnership . . . 411 Title X.— Of Loans 422 Title XI.— Of Deposits and of SEauESTRATioN . . . 429 Title XII.— Of Contingent Contracts . . . .438 Title XIII. — Of Potvers op Attorney 442 Title XIV.— Of Security 448 Title XV.— Of Compromises 456 Title XVI. — Of Execution against the Person in Civil Matters 459 Title XVII.— Of Pledges . 462 Title XVIII. — Of Privileges and Mortgages . . 467 Title XIX. — Of Compulsory Ejectment and of Rank AMONG Creditors 501 Title XX.— Of Prescription 505 FEENCH CIVIL CODE. Pjreliminary Title. OF THE PUBLICATION, EFFECTS AND APPLICATION OF LAWS IN GENERAL. / (Passed 5th March, 1803 ; promulgated 15th of same month.) Art. 1. Laws become enforceable throughout the whole of the French territory by virtue of the promulgation made by the King {the President of the Republic). Law of 25th February, 1876, Art. 2, Constit. Law 16th July, 1875, Art. 7. They shall be enforced in each part of the King- dom {of tM Republic) from the moment the promulgation can have become known. The promulgation made by the King {the President of the Republic) shall be presumed to be known in the Depart- ment {a) of the Royal Residence one day after the day of promulgation, and in each of the other Departments after the expiration of the same time, increased by as many days as there shall be ten myriameters (6) (about twenty ancient leagues) between the city where the promulgation shall have been made and the chief city of each Department. S. The law can only make provision for the future : it (a) France is divided into 86 Departments and one Territory. (6) Ten thousand meters or 6 ■2134 American miles. C.N. B 2 OF LAWS IN GENERAL. has no retroactive effect. Civ. C. 184, 217, 384, 691, 1179, 2281. 3. Laws of police and public order are binding upon all those who live on the territory. Real estate, even when owned by foreigners, is governed by French law. Laws relating to the status and capacity of persons apply to French people, even residing in a foreign country. Cir. C. 3, 11, 14, 170, 331, 488, 805, 843, 1554, 2123, 2128. 4. A Judge who refuses to render judgment under pre- tence that the law is silent, obscure or insufficient, may be prosecuted as being guilty of denying justice. 5. Judges are not allowed to decide cases submitted to them by way of general and settled decisions. 6. Laws relating to public order and morals cannot be derogated from by private agreement. Civ. C. 307, 530, 686, 791, 815, 900, 1130, 1133, 1172, 1387, 1628, 1674, 1780, 1833, 1855, 2078, 2088, 2220. ( 3 ) Book I. OF PERSONS. Title First, of the enjoyment and loss of civil rights. (Passed 8th March, 1803 ; promulgated 18th of same month.) Chap. I. Or THE Enjoyment of Civil Eights. 7. (Amended hy Law of 26th June, 1889.) — The en- joyment of civil rights is independent of the enjoyment of political rights, which are acquired and retained according to the constitutional and electoral laws. 8. {Amended hy Law of 26th June, 1889.) — Every Frenchman shall enjoy civU rights. Are French : — 1. Every individual born of a Frenchman in France or in a foreign country. Every natural child whose filiation is established during minority by acknowledgment or judgment follows the nationality of the parent with respect to whom the proof has first been made. If such filiation results from the same instrument or judgment with respect to the father and mother, tbe child shall follow the nationality of the father. 2. Every individual bom in France of unknown parents or of parents whose nationality is unknown. B 2 4 OF THE ENJOYMENT OF CIVIL EIGHTS. 3. Every individual born in France of foreign parents of whom one was born there, but subject to the privilege for such individual, if the mother is the one who was born in France, to decHne the French nationality during the year following his majority, by conforming with the provisions of sub-division 4 hereinafter. A natural child may, under the same conditions as a legitimate child, decline the French nationality when the parent who was born in France is not the one whose nationality such child should follow, according to the second paragraph of sub-division 1. 4. Every individual born in France of an alien and who at the time of his majority is domiciled in France, unless he has declined to be French during the year following his majority, as regulated by French law, and proved that he has retained the nationality of his parents by an attestation in due form of his Government, which shall remain annexed to the declaration, and unless he has also produced, if necessary, a certificate establishing that he has answered the military call according to the military laws of his ■country, except in the cases provided for by the treaties. 5. Naturalized aliens. May be naturalized : — 1. Aliens who have obtained permission to establish their domicil in France in conformity with article 13 hereinafter, after being domiciled in France for three years dating from the recording of their application at the Department of Justice. 2. Aliens who can show an uninterrupted residence of ten years. A sojourn in a foreign country to fulfil duties conferred by the French Government is assimilated to a residence in France. 3. Aliens admitted to estabUsh their domicil in France, after one year, if they have rendered important services to France, if they have displayed remarkable talents or if they OF THE ENJOYMENT OP CIVIL EIGHTS. 5 have introduced a new industry or useful inventions, or if they have created industrial or other establishments, or agricultural enterprises, or if they have become connected in some capacity with the military organization in the colonies and countries under French protectorate. 4. An alien who has married a French woman, also aiter an authorized domicil of one year. An application for naturalization is passed upon by decree (c) after an investigation as to the morality of the alien. • 9. [Amended by Law of 22nd July, 1893.) — Every indi- vidual born in France of an alien and who is not domiciled there at the time of his majority, may, up to the fuU age of twenty-two years, take the engagement to establish, his domicil in France, and if he establishes it during the year from the taking of the engagement, he may claim French nationality by a declaration which, unless recorded at the Department of Justice, shall be void. The recording shall be refused if it appears by the papers produced that the appearer does not come within the con- ditions required by law ; but he may then proceed before the Civil Courts in the form prescribed by articles 855 et s. of the Code of Civil Procedure. A notice of refusal, stating reasons, shall be given to the appearer within two months from his declaration. The recording may also be refused to an appearer ful- filling all legal conditions, on account of his unworthiness ; but in that case, a decree shall be rendered in accordance with the decision of the Council of State, within three months from the declaration, or in case of controversy, from the day when the judgment which has admitted the applica- tion has become final, the appearer having been duly notified. (c) An act emanating from the executive. 6 OP THE ENJOYMENT OP CIVIL RIGHTS. The appearer shall have the right to produce papers and hriefs hefore the Council of State. In default of the notices hereahove referred to, within the time above specified, and at their expiration, the Minister of Justice shall deliver to the appearer, at his request, a copy of the declaration bearing the statement that it has been recorded. The declaration shall produce its effects from the day upon which it has been made, subject to the nullity which may result from the refusal to record. The rules relating to the recording which are contained in paragraphs 2 and 3 of the present article shall apply to the declarations made for the purpose of declining French nationality, in accordance with article 8, sub-divisions 3 and 4, and articles 12 and 18. The declarations made, either to claim or decline French nationality, shall be inserted in the Bulletin of Laics after being recorded. Nevertheless the omission of this formality shall not impair the rights of the appearers. If the individual who claims French nationality is rot of the full age of twenty-one years the declaration shall be made in .the name of his father ; in case of his death, by his mother ; in case of the death of the father and mother, or in case of their exclusion from the guardianship in the cases provided by articles 141, 142, and 143 of the Civil Code, by the guardian authorized by a decision of the family council. He also becomes French, if, having been placed upon the recruiting lists, he takes part in the operations of recruit- ment without setting up his alienage. 10. {Amended by Law of2Qth June, 1889.) — Every in- dividual bom in France or abroad, of parents of whom one has lost his or her French nationality, may claim this nationality at any age, under the conditions contained in article 9, unless, being domiciled in France and called upon OF THE ENJOYMENT OF CIVIL RIGHTS. 7 to perform military duty at his majority, he has claimed a foreign nationality. 11. An alien shall enjoy in France the same civil rights as those granted to French people hy the treaties of the nation to which such alien belongs, Giv. 0. 13, 14, 343, 345, 726, 2123, 2128. 13. {Amended by Law of2&th June, 1889.) — A woman who is an alien and who has married a Frenchman shall follow the condition of her husband. A woman married to an alien who becomes a Frenchman by naturalization, and the children of fuU age of a natu- ralized alien, may become French if they apply therefor, without any conditions of residence, either by a decree con- ferring that nationality upon the husband or the father or the mother, or in consequence of the declaration they may make in accordance with the terms and under the conditions of article 9. Minor children of a surviving father or mother who are naturalized French become French unless, during the year following their majority, they decline such nationality in accordance with the provisions of article 8, section 4. 13. {Amended hy Law of 26th June, 1889.) — An alien who has been authorized by decree to establish his domicil in France shall have the enjoyment of all civil rights. The effect of the authorization shall cease at the expira- tion of five years if the alien does not ask to be naturalized or if his application is rejected. In case of decease before naturalization the authorization and the time of residence which has followed shall count for the wife and children who were minors at the time of the decree granting such authorization. 14. An alien, even not residing in France, may be sum- 8 OF THE LOSS OF CIVIL EIGHTS. moned before the French Courts for the fulfilment of obliga- tions contracted by him in France towards a French person. He may be called before the French Courts for obligations contracted by him in a foreign country towards French people. Civ. C. 11, 14, 15, 822, 2123, 2128. 15. A Frenchman may be called before the French Courts for obligations contracted by him in a foreign country, even towards an alien. 16. {Amended hy Law of 5th March, 1895.) — In all cases an alien who is the original plaintiff or interpleads shall be obliged to give security for the expenses and damages result- ing from the suit, unless he owns real estate in France of sufficient value to secure the payment thereof. Civ. C. 20i0, 2041. Chap. II. Of the Loss of Civil Rights. § 1. Of the Loss of Ciml Bights hy the Loss of French NationaKty. 17. {Amended hy Law of 2Qth June, 1889.) — Shall lose their French nationality : — 1. A Frenchman naturalized abroad, or who obtains a foreign nationality by operation of the law, upon his own application. If he is still subject to the duties of mihtary service in the regular army, a foreign naturalization only causes the loss of his French nationality if it has been allowed by the French government. 2. A Frenchman who has repudiated his French OF THE LOSS OF CIVIL RIGHTS. 9 nationality in the cases provided by sub-division 4 of article 8 and by articles 12 and 18. 3. A Frenchman who, having accepted a public office conferred by a foreign government, retains it, notwith- standing the order of the French Government to resign within a stated time. 4. A Frenchman who, without leave of his government, takes up military service abroad, without prejudice to the penal laws against the Frenchman who evades the obliga- tions of military law. 18. {Amended bp Law of 26th June, 1889.) — A French- man who has lost his French nationality can recover it, if he resides in France, by obtaining his reinstatement by decree. French nationality may be conferred by the same decree upon the wife and the children of full age if they apply therefor. The minor children of the father or mother who have been reinstated become French, unless they decline such nationality within the year following their majority by conforming to the provisions of article 8, sub- division 4. 19. {Amended by Law of2Gth June, 1889.) — A French- woman who marries an alien follows the nationality of her husband, unless her marriage does not confer his nationality upon her, and in that event she remains French. If her marriage is dissolved by the death of her husband, or by divorce, she recovers her French nationality with the authorization of the government, provided she resides in France or returns declaring that she intends to remain there. In case the marriage is dissolved by the death of the husband, French nationality may be awarded, at the request of the mother, to the minor children by the same decree of reinstatement or by a subsequent decree, if the application is made by the guardian with the approval of the family council. 10 OF THE LOSS OF CIVIL RIGHTS. 20. {Amended hy Law of 2 shall be made at the place where the thing forming the object of the obligation was at the time such obligation was contracted. With the exception of these two cases, the payment shall be made at the domicil of the debtor. Civ. C. 1135, 1187, 1258, 1264, 1609, 1651, 1942. 1248. The expenses connected with the payment are borne by the debtor. Civ. C. 1260, 1608. Sub-sect. 2. Of Payment with Subrogation. 1249. Subrogation to the rights of a creditor for the benefit of a third person who pays him is either conventional or legal. 1250. Such subrogation is conventional : 1. "When the creditor receiving payment from a third person subrogates him to his rights, actions, privileges or mortgages against the debtor : such subrogation must be express and made at the same time as the payment ; 2. "When the debtor borrows a sum for the purpose of 284 OF CONTJRACTS IN GENERAL. paying his debt and of subrogating the lender to the rights of the creditor. In order that such a subrogation should be valid, it is necessary that the instrument by which the loan is made and the receipt therefor should be drawn up before notaries ; that in the instrument for the loan it shaU be declared that the sum has been borrowed to make the payment and that in the receipt it shall be declared that the payment has been made with the monies furnished for that purpose by the new creditor. Such subrogation takes place independently of the wish of the creditor. Civ. C. 1236, 1251, 1322, 1328, 1693, 1989, 2102, 2103. 1251. Subrogation takes place by right : 1. For the benefit of the person "who, being himself a creditor, pays another creditor, who is preferred to him on account of his privileges or mortgages ; 2. For the benefit of the purchaser of a piece of real estate who applies the price of his purchase to the payment of the creditors to whom this hereditament was mortgaged ; 3. For the benefit of the person who, being bound with others or for others to the payment of the debt, had an interest in satisfying it ; 4. For the benefit of the heir with benefit of inventory who has paid with his monies the debts of the succession. Civ. C. 874, 1249, 1250, 1252, 1289, 1324, 1376, 2114, 2178, 2191. 1253. The subrogation established by the foregoing articles takes place as well against the sureties as against the debtors : it cannot prejudice the creditor when he has only been paid in part ; in such case he can enforce his rights for what remaias due to him in preference to the person from whom he has only received partial payment. Civ. C. 1165, 2011, 2028. OP CONTRACTS IN GENERAL. 285 Sub-sect. 3. Of Imputation of Payments. 1253. A debtor of several debts has the right when he pays to declare what debt he means to discharge. Civ. 0. 1234, 1256, 1848. 1254. A debtor of a debt which bears interest or pro- duces a revenue cannot, without the consent of the creditor, impute the payment which he makes to the reduction of the capital in preference to the revenue or interest: the payment made on the capital and interest but which is not entire, shall first be imputed to the payment of the interest. Gv. C. 1289, 1291, 1640, 1906, 2081. 1255. When the debtor of several debts has accepted a receipt by which the creditor has imputed what he has received to one of such debts specially, the debtor can no longer ask that the imputation be made to a different debt, unless there has been fraud or surprise on the part of the creditor. 1256. When the receipt does not bear any imputation the payment shaU. be imputed to the debt which the debtor had at that time the greiatest interest in satisfying among those which were likewise due : if not, then to the debt due, although it may be less burdensome than those which are not due. If the debts are of the same nature, the imputation is made to the one which has been the longest due : if all things are equal, it is made proportionately. Civ. C. 1253, 1255. Sub-sect. 4. Of Tenders of Payment and of Consignation. 1257. When a creditor refuses to receive his payment, the debtor can make him an actual tender, and upon the 286 OF CONTEACTS IN GENERAL. refusal of the creditor to accept it, he may deposit the sum or the thing offered. Actual tenders, followed by a consignation, release the debtor : they take the place of payment with respect to him when they have been legally made and the thing so deposited remains at the risk of the creditor. Civ. C. 1134, 1258, 1259, 1662, 2160, 2180. 1258. In order that an actual tender be valid, it is neces- sary : 1. That it should be made to a creditor who has the capacity of receiving it, or to a person who has power to receive it for him ; 2. That it should be made by a person who is capable of making the payment ; 3. That it should be for the entire sum due, with the revenue or interest due, the liquidated costs, and a sum for the unliquidated costs, to be completed if necessary ; 4. That the time of maturity should have come, if any stipulation has been made in favour of the creditor ; 5. That the condition under which the debt has been contracted should have been fulfilled ; 6. That the tender should be made at the place which is agreed upon for the payment, and if no special stipula- tion has been made as to the place of payment, that the tender be made to the creditor personally or at his domicil or at the domicil which he has elected for the fulfilment of the agreement ; 7. That the tender should be made by a public of&cer who has the necessary capacity for such sorts of writs. Civ. C. Ill, 450, 464, 1181, 1236, 1239, 1247, 1259, 1606, 1887, 2186. 1259. To make the consignation valid it is not necessary that it should have been authorized by the Judge ; it shall be suf&cient : OP CONTRACTS IN GENERAL. 287 1. That a writ served upon the creditor should have preceded it, which shall contain an indication of the day, the hour, and the place where the thing offered will be deposited ; 2. That the debtor should have parted with the thing tendered by placing it in the spot provided by law to receive consignations, together with the interest up to the date of deposit ; 3. That an official report should be drawn up by a public officer, of the nature of the things tendered, of the refusal made by the creditor to receive them, or of his non-appear- ance, and finally of the deposit ; 4. That in case of non-appearance on the part of the creditor, the official report of deposit should have been served upon him with a writ demanding that he should take the thing deposited. 1260. The expense of an actual tender and of a con- signation shall be borne by the creditor, if the same are vaHd. 1261. So long as the consignation has not been accepted by the creditor, the debtor may withdraw it ; and if he withdraws it, his co-debtors or his sureties are not released. Civ. C. 1262, 2034. 1262. When a debtor has himself obtained a judgment which has become final and which declares that his tender and consignation are good and valid, he cannot any longer, even with the consent of the creditor, withdraw his con- signation to the detriment of his co-debtors or his sureties. Civ. C. 1351, 2034. 1263. A creditor who has consented to allow the debtor to withdraw his consignation after it has been declared valid by a judgment which has become final, can no longer 288 OP CONTRACTS IN GENERAL. enforce the privileges or mortgages whicli belong thereto, for the payment of his claim : he is only entitled to a mort- gage from the time when the instrument by which he has consented to the withdrawal of the consignation has been clothed with the necessary requirements to carry with it a mortgage. Civ. C. 1351. 1264. If the thing due is a special corpus which must be delivered at the place where it is, the debtor must have a writ of demand issued against the creditor to take away the thing, which shall be served upon him personally, or at his domicil, or at the domicil elected for the fulfilment of the agreement. When the writ has been served, if the creditor does not take the thing away and the debtor requires the spot in which it has been placed, he can obtain from the Court permission to deposit it in some other spot. Civ. C. Ill, 1247, 1609. Sub-sect. 5. Of Assignment of Property. 1265. An assignment of property is the abandonment made by a debtor of all his property in favour of his creditors when he finds himself unable to pay his debts. Civ. C. 1270. 1266. An assignment of property is voluntary or judicial. 1267. A voluntary assignment of property is one which creditors accept voluntarily and which has no other effect than the one resulting from the very conditions of the con- tract entered into between them and the debtor. Civ. C. 1134. 1268. A judicial assignment is an advantage which the law grants to a debtor who has been unfortunate and has acted in good faith ; he is allowed to make in court to his OF CONTRACTS IN GENERAL. 289 creditors the abandonment of all his property, notwith- standing any stipulation to the contrary for the purpose of securing the liberty of his person (l). 1269. A judicial assignment does not confer ownership upon the creditors : it only gives them the right to have the property sold for their benefit and to coUect the income up to the time of the sale. 1270. Creditors cannot refuse a judicial assignment out- side of the cases excepted by law. The assignment carries with it the release of the execu- tion against the person. Otherwise, it only releases the debtor to the extent of the value of the property abandoned ; and in case such property is insufficient, if he acquires more property he is obliged to abandon it until full payment has been made. § 2. Of Novation. 1271. Novation takes place in three ways : 1. When the debtor contracts towards his creditor a new debt which is substituted for the old one and ex- tinguishes it ; 2. When a new debtor is substituted for the old one, who is released by the creditor ; 3. When, owing to a new agreement, a new creditor is substituted for the old one, as to whom the debtor is released. Civ. C. 878, 879, 1273, 1281, 1654, 1690, 1965. 1272. Novation can only take place among persons who have the capacity of contracting. Civ. C. 1124. (I) The law of 22 July, 1867, has abolished execution against the person in commercial and civil matters and against foreigners. C.N. U 290 OF CONTRACTS IN GENERAL. 1273. Novation cannot be presumed. The -wish to create it must clearly result from the instrument. Civ. C. 1256, 1271, 1338, 1347, 1353. 1274. Novation, by substitution of a new debtor, can take place without the cooperation of the first debtor. 1275. An assignment by which a debtor gives to a creditor another debtor, who binds himself towards the creditor, does not create novation, unless the creditor has expressly declared that he intended to release his debtor who has made the assignment. Civ. C. 1120, 1121, 1273 et s., 1277, 1690, 2112, 2148. 1276. A creditor who has released a debtor by whom an assignment has been made has no remedy against such debtor if the assignee becomes insolvent, unless the instru- ment contains an express reserve, or unless the assignee has already openly failed or is in a state of insolvency at the time of the assignment. Civ. C. 1295. 1277. A simple indication made by the debtor of a person who is to pay in his stead does not create nova- tion. The same rule applies in case of a simple indication made by a creditor of a person who is to receive in his stead. Civ. C. 1121. 1278. The privileges and mortgages belonging to an old claim do not pass over to the one which is substituted for it, unless the creditor has expressly reserved them. 1279. When novation takes place by the substitution of a new debtor, the original privileges and mortgages of the claim cannot extend to the property of the new debtor. OF CONTRACTS IN GENERAL. 291 1380. When noTation takes place between the creditor and one of the joint debtors, the privileges and mortgages of the former claim can only be reserved as to the property of the person who contracts the new debt. Civ. C. 1208, 1278. S81. All the co-debtors are released by novation which has taken place between the creditor and one of the joint debtors. Novation which takes place with respect to the principal debtor releases the sureties. Nevertheless, if the creditor in the first case has insisted upon the adhesion of the co-debtors or if in the second case he has insisted upon the adhesion of the sureties, the whole claim subsists, if the co-debtors or the sureties refuse to accept the new arrangement. Civ. C. 1200, 2034, 2037. §3.0/" Remission of Debt. 1S8S. A voluntary surrender of an original instrument under private signature by a creditor to a debtor is proof of release. Civ. C. 1815, 1350. 1S88. A voluntary surrender of an exemplified copy of the evidence of debt in form for execution estabHshes a pre- sumption of release from the debt or of payment, without prejudice to the proof of the contrary. Civ. C. 1315, 1350, 1352. 1284. A surrender of an original instrument under private signature or of a certified copy of an instrument in form for execution to one of the joint debtors has the same effect for the benefit of his co-debtors. Civ. C. 1208, 1282, 1350, 1352. 1285. A conventional'remission or discharge in favour TJ 2 292 OF CONTRACTS IN GENERAL. of one of the joint debtors releases all the others, unless the creditor has expressly reserved his rights against the latter. In this last case, he can only claim the debt subject to the deduction of the share of the person to whom he has made the remission. Civ. C. 1208. 1286. The return of a thing given as pledge is not suffi- cient to establish a presumption of remission of debt. Civ. C. 2071 et s. 1287. A conventional remission or discharge granted to the principal debtor releases the sureties ; When granted to a surety it does not release the prin- cipal debtor ; When granted to one of the sureties it does not release the others. Civ. C. 1285, 2021, 2025, 2034. 1288. What a creditor has received from a surety to release his undertaking shall be deducted from the debt and shaU go towards the release of the principal debtor and the other sureties. Civ. C. 1253. § 4. O/' Compensation. 1289. When two persons are indebted to each other, compensation takes place between them which wipes out both debts in the manner and in the cases hereafter men- tioned. Civ. C. 803, 1165, 1290, 1338. 1290. Compensation takes place by right by the sole effect of the law, even without the knowledge of the debtors ; the two debts are reciprocally wiped out from the moment they happen to exist at the same time, to the extent of the respective amounts thereof. Civ. C. 1289, 1291. OP CONTRACTS IN GENERAL. 293 1291. Compensation only takes place between two debts of which the object is likewise a sum of money or a certain quantity of consumable things of the same kind which are also liquidated and due. Prestations in grain or provisions which are not contested and of which the price is regulated by lists of averages can be compensated with sums which are liquidated and due. Civ. C. 1289, 1565, 1722, 2166 et s. 1292. Days of grace are not an obstacle to compensation. Civ. C. 1244. 1293. Compensation takes place whatever may be the causes of one or the other of the debts, except in case : 1. Of an action for restitution of a thing of which the owner has been unjustly deprived ; 2. Of an action for restitution of a deposit or of a loan for use ; 3. Of a debt of which the cause is support, declared not liable to attachments. Civ. C. 1291, 1885, 1932, 2093. 1294. A surety can set up compensation for what the creditor owes the principal debtor ; But a principal debtor cannot oppose compensation for what the creditor owes the surety. In like manner a debtor jointly and severally liable can- not set up compensation for what a creditor owes his co- debtor. Civ. C. 1208, 2036. 1295. A debtor who has accepted absolutely the assign- ment made by a creditor to a third party of his rights, can no longer set up against the assignee the compensation which he might before the acceptance have set up against the assignor. An assignment which has not been accepted by the debtor, but notice of which has been served upon him, only 294 OF CONTRACTS IN GENERAL. prevents compensation as to claims subsequent to sucli notice. Civ. C. 1275, 1690. 1296. When the two debts are not payable at the same place, compensation can only be set up by making good the expenses of delivery. Civ. C. 1247. 1897. When several debts which can be compensated are due by the same person, the same rules are followed for compensation as those of article 1256 for imputation. 1298. Compensation does not take place when prejudicial to rights acquired by a third party. For instance, a person who, being a debtor, has become a creditor since an attach- ment has been made in his hands by a third party, cannot set up compensation to the prejudice of the attaching cre- ditor. Civ. C. 1242. 1299. A person who has paid a debt which by right was wiped out by compensation cannot any longer, by bring- ing up the claim for which he has not set up compensation, take advantage of the privileges or mortgages belonging thereto to the detriment of third parties, unless he had good cause for not knowing of the claim with which his debt should have been compensated. Civ. C. 1278, 2180. § 5. Of Merger. 1300. When the capacities of creditor and debtor are joined in the same person, merger takes place by right and wipes out both claims. Civ. C. 1185, 1209, 2180. 1301. Merger which takes place in the person of the principal debtor extends to his sureties ; When it takes place in the person of the surety, it does not occasion the extinction of the principal obligation ; OF CONTKACTS IN GENERAL. 295 When it takes place in the person of the creditor, it only extends to his co-debtors jointly and severally liable to the extent of the portion which he owed. Civ. C. 1209, 2035. § 6. 0/" the Loss of a Thing Due. 1302. When a certain and specific thing forming the object of an obligation is destroyed, can no longer be used in trade (ni), or is lost in such a way that its existence is absolutely unknown, the obligation ceases if the thing has been destroyed or lost not through the fault of the debtor and before a demand has been made upon him. Even when a demand has been made upon the debtor, the obligation ceases if he has not assumed the cases of accident, provided the thing would likewise have been destroyed in the possession of the creditor if it had been delivered to him. The debtor is obHged to prove the case of accident which he alleges. In whatever manner a thing which has been stolen may have been destroyed or lost, its loss does not exonerate the person who has taken it away from returning its value. Civ. C, 1138, 1150, 1193 et s., 1601, 1741, 1788, 1810, 1882. 1303. When a thing has been destroyed, can no longer be used in trade (»*) or has been lost, not through the fault of the debtor, the latter, if he is entitled to any rights or actions for indemnity with respect to such thing, is bound to assign them to his creditor. Civ. C. 1934. (m) The word trade is taken here in a broad sense, and applies to property belonging to private individuals, in contradistinution to public property. 296 OF CONTRACTS IN GENERAL. %7. Of the Action for Avoidance or Rescission of Contracts. 1304. In all cases in which an action for avoidance or rescission of a contract is not limited to a shorter time by a special law, such action is maintainable during ten years. In case of duress, the time only runs from the day upon which such duress has ceased ; in case of error or of fraud, from the day upon which the same has been discovered ; and for instruments executed by married women, not autho- rized, from the day of the dissolution of the marriage. As regards contracts entered into by interdicted persons, the time only runs from the day the interdiction is raised ; and as regards those entered into by minors, from the day they have become of age. Civ. C. 475, 791, 886, 887, 1108 et s., 1115, 1130. 1305. A simple lesion occasions rescission in favour of a minor not emancipated with respect to all sorts of con- tracts, and in favour of an emancipated minor with respect to all contracts which exceed the limits of his capacity, as is specified in the Title Of Minority, of Guardianship and of Emancipation. Civ. C. 450, 482 et s., 1124, 1125, 1304. 1306. A minor is not relieved on account of lesion when it only results from a casua^ and unforeseen event. 1307. A simple declaration made by the minor that he has become of age does not prevent him from being relieved. 1308. A minor who is a trader, a banker or a workman is not relieved of the engagements which he has made on account of his trade or of his work. Civ. C. 487. 1309. A minor is not relieved from the conditions inserted in his marriage contract when they have been OF CONTRACTS IN GENERAL. 297 made with the consent and assistance of those whose con- sent was necessary for the validity of his marriage. Civ. C. 1095, 1398. 1310. He is not relieved from the ohligation resulting from a tort or quasi-tort. Civ. C. 1305, 1312, 1382 et s. 1311. He is not allowed to repudiate an agreement which he had entered into during his minority, when he has rati- fied it after his coming of age, whether such agreement is nuU owing to its form or whether it was only avoid- able. Civ. C. 1338. 1313. When minors, interdicted persons, or married women, are allowed in such capacities to be relieved of their agreements, the repayment of what may have been paid in consequence of such agreements during the minority, the interdiction, or the marriage, cannot be claimed unless it is proved that what has been paid has turned out to their benefit. Civ. C. 217, 225, 484, 499, 513, 1241. 1313. Persons of fuU age are only relieved on account of lesion imder the conditions specially set forth in the present Code. 1314. When the formalities required with respect to minors or interdicted persons, either for the conveyance of real estate, or upon the division of a succession, have been fhlfilled, they are considered, with respect to such operations, as having been made after the person has become of age or before interdiction. Civ. C. 457, 458, 466, 484, 840. 298 OF CONTKACTS IN GENERAL. Chap. VI. Of the Proof of Obligations and that of Payment. 1315. A person wlio claims the falfilment of an obliga- tion must prove it. Reciprocally, a person who claims to be released, must prove payment or the fact which has caused the obliga- tion to be wiped out. Civ. C. 646, 1341, 1353, 1355, 1614. 1316. The rules relating to documentary evidence, oral evidence, presumptions, the admissions of the party, and oaths, are explained in the following sections. Civ. C. 1317 et s., 1341 et s., 1349 et s., 1354, 1357. § 1. Of Documentary Evidence. Sub-sect. 1. Of Public Instrnments. 1317. A public instrument is one which has been made by public officers having the right to draw up instruments in the place where the instrument has been prepared and with the formalities required. Civ. C. 1690 et s., 2127, 2129. 1318. An instrument which is not authentic owing to the incompetency or incapacity of the officer, or an irre- gularity in its form, is good as a private instrument if it has been signed by the parties. 1319. A public instrument is full proof of the agreement which it contains against the contracting parties and their heirs or legal representatives. Nevertheless, in case of a direct complaint for forgery, the performance of the instrument alleged to have been forged shall be suspended by the indictment, and in case of OF CONTRACTS IN GENERAL. 299 a complaint for forgery made incidentally, the Courts may, according to the circumstances, suspend temporarily the performance of the instrument. Ciy. C. 457, 901, 1165, 1167, 1310, 1317, 1320, 1322, 1341, 1353. 1820. An instrument, whether public or under private signature, is full proof between the parties, even of what is only expressed therein in enunciative terms, provided the enunciation directly applies to the clause. The enunciations which do not relate to the clause can only be used as a commencement of proof. Civ. C. 1341, 1347. 1321. Defeasances only produce effect between the contracting parties : they produce no effect against third parties. Civ. C. 1165, 1319, 1322, 1328. Sub-sect. 2. Of Instruments under Private Signature. 1322. An instrument under private signature admitted as binding by the person against whom it is set up or law- fully held as such, has, with respect to those who have signed it, their heirs and legal representatives, the same force as a public instrument. Civ. C. 1319, 1328, 1341. 1323. A person against whom an instrument under private signature is set up is bound formally to admit or repudiate his handwriting or his signature. His heirs or legal representatives may limit themselves to declaring that they do not know the handwriting or the signature of the principal. Civ. C. 1324. 1324. In case the party repudiates his writing or signature, and in case his heirs or legal representatives declare that they do not know the same, a verification shall be ordered by the Courts. 1325. Instruments under private signature which contain 300 OP CONTRACTS IN GENERAL. a synallagmatic contract are only valid if they are made in as many originals as there are parties having a distinct interest. One original is sufficient for all the persons who have the same interest. Each original must contain a statement of the numher of originals which have been made. Nevertheless, the omission to mention that the originals have been made in duplicate, triplicate, &c., cannot be set up by the person who has performed his part of the contract contained in the instrument. Civ. C. 1102, 1338, 1547, 1589, 2011, 2044. 13S6. A note or a promise under private signature by which a single party binds himself to another to pay a sum of money or an appreciable thing, must be wholly written in the hand of the person who signs it, or at least, it is necessary that, besides his signature, he should have written in his own hand Good for, or Approved, with the sum or the quantity of the thing written out in full ; Except in case the instrument emanates from traders, workmen, farm labourers, vine-dressers, labourers hired by the day, and servants. Civ. C. 1341, 1347, 1353. 1337. "When the sum expressed in the body of the in- strument is different from the one mentioned after the words Good for, the obligation is only presumed to be for the smaller amount, even if the instrument and the words Good for, &c., are written entirely in the hand of the person who has bound himselfj unless it is established on which side the error lies. Civ. C. 1162. 1328. Instruments under private signature only have a date with respect to third parties from the day upon which they have been recorded, from the day of the death of the person or of one of the persons who have signed them, or OF CONTRACTS IN GENERAL. 301 from the day their contents are set down in instruments drawn up by pubKc officers, such as official reports of the affixing of seals or of the making of inventories. Civ. C. 690, 695, 1315, 1322, 1690, 1998. 1329. The books of merchants shall not be taken as proof against persons who are not traders for the articles therein mentioned, with the exception of what is stated with respect to oaths. Civ. C. 1366. 1330. The books of merchants shall be held as proof against themselves, but the person who wishes to derive an advantage from them cannot divide them as to the contents which may be in opposition to his claim. 1331. Books and private papers do not constitute a title for those who have written them. They are proof against them : 1. In all cases in which they formally recite a pay- ment received ; 2. When they contain the express statement that the entry has been made to take the place of an instrument for the benefit of the person in favour of whom they recite an obligation. Civ. C. 1353, 1357. 1332. What has been written by a creditor at the end, in the margin, or upon the back of an instrument which has always remained in his possession constitutes a proof, although he has not signed or dated the same, whenever such writing tends to show that the debtor has been re- The same rule applies to what has been written by the creditor on the back, or in the margin, or at the end of the duplicate of an instrument or of a receipt, provided such duplicate is in the hands of the debtor. Civ. C. 1354. 302 OF CONTRACTS IN GENERAL. Sub-sect. 3. Of Tallies. 1333. Tallies which agree with each other are proof among people who are in the habit of thus counting the articles which they furnish or receive by retail. Sub-sect. 4. Of Copies of Instruments. 1334. Copies, when the original instrument exists, are only a proof of what is contained in the instrument, the production of which can always be demanded. 1335. "When the original instrument no longer exists, copies are proof with the following distinctions : 1. Exemplified copies or first certified copies have the same weight as the original : copies which have been made by order of a Judge, the parties being present or having been duly summoned, or those which have been made in the presence of the parties and by their mutual consent, have also the same weight. 2. Copies which have been made from the original in- strument by the notary who has received it, or by one of his successors, or by pubHc officers who, in such capacity, are the keepers of the originals, but without the order of the Judge or the consent of the parties, and since the exemplified copies or first certified copies have been delivered, can, in case of loss of the original, have the same weight when they are old. They are considered as being old when they date more than thirty years back. If they date less than thirty years back they can only be used as commencement of written proof. 3. "When the copies taken from the original of an instru- ment deposited with a notary have not been made by the notary who received the instrument or by one of his suc- cessors or by public officers who, in such capacity, are the OP CONTRACTS IN GENERAL. 303 keepers of the originals, such copies can only be used, how- ever old they may be, as commencement of written proof. 4. Copies of copies may, according to circumstances, be considered as mere information. Civ. C. 691, 1334, 1347. 1336. The transcription of an instrument on the public registers can only be used as commencement of written proof, and for that purpose it shall even be necessary : — 1. That it be certain that all the originals filed with the notary during the year in which the instrument appears to have been made are lost or that it be proved that the loss of the original of such instrument has occurred by special accident. 2. That an index of the notary in proper order should exist showing that the instrument was made upon that date. When, owing to the concurrence of these two circum- stances, the proof can be made by witnesses, it shall be necessary that those who have been witnesses to the in- strument be heard, if they still exist. Civ. 0. 1347, 1353. Sub-sect. 5. Of Instruments acknoivledging or confirmitig a thing. 1337. Instruments acknowledging a thing do not make away with the necessity of producing the original in- strument, unless its terms are expressly recited therein. What they may contain in addition to the primary in- strument, or what is different therein, has no effect. Nevertheless, if there were several acknowledgments in like form, strengthened by possession, and of which one dates more than thirty years back, the creditor may be exempted from producing the primary instrument. Civ. C. 1334, 2263. 1338. An instrument confirming or ratifying an obli- 304 OF CONTRACTS IN GENERAL. gation against whicli the law allows an action for avoidance or rescission is only valid when the substance of the obli- gation is contained therein and the motive of the action for rescission and the intention to make good the flaw upon which such action is based are mentioned. In the absence of an instrument of confirmation or rati- fication it is sufficient that the obligation should voluntarily be performed after the time when the obligation could be lawfully confirmed or ratified. Confirmation, ratification or voluntary performance in the form and at the time mentioned by law carries with it the renunciation of the defences and exceptions which could be opposed to this instrument, without prejudice, however, to the rights of third parties. Civ. C. 724, 816, 888, 1109, 1115, 1120, 1131, 1304, 1311, 1339, 1340, 1554, 1583, 1998, 2012, 2036, 2134, 2135. 1339. A donor cannot by any act of confirmation make good the flaws of a donation inter vivos ; if it is void as to its form, it must be re-made in legal form. Civ. C. 816, 892, 931 et s., 1081, 1092. 1340. Confirmation, or ratification, or voluntary per- formance of a donation by the heirs or legal representatives of a donor after his death carries with it their renunciation of setting up either irregularities of form or any other exception. Civ. C. 1338. 12. Of Oral Evidence. 1341. It shall be necessary to execute an instrument drawn up in the presence of notaries or made under private signature for all things of which the simi or value exceeds one hundred and fifty francs, even in case of a voluntary deposit, and no proof by witnesses in favour or against the contents of the instrument, nor as to what is alleged to OF CONTRACTS IN GENERAL. 305 have been said previously, at the time, or since the mak- ing of the same, shall be allowed, even if the sum or value in dispute is less than one hundred and fifty francs : All of which is without prejudice to what is mentioned in the laws relating to commerce. Civ. C. 1116, 1131, 1319, 1320, 1347, 1348, 1353, 1372, 1715, 1834, 1923, 2015, 2052. 1342. The above rule applies in case the action is brought, besides the payment of a capital, for the pay- ment of interest, which, added to the capital, exceeds the sum of one hundred and fifty francs. 1343. A person who has brought an action for more than one hundred and fifty francs is no longer allowed to produce oral evidence, even by reducing his original claim. 1344. Oral testimony cannot be allowed, even in an action for a sum less than one hundred and fifty francs, when such sum is declared to be a balance, or to form part of a larger claim which is not proved in writing. 1345. If, in the same action, a party asks for several things for which he has no writing, and which added together exceed the sum of one hundred and fifty francs, no oral testimony can be allowed, even if the party alleges that the claims come from different causes, and have arisen at different times, unless such rights are derived from a succession, donation, or otherwise, from different persons. 1346. All actions, for vrhatever cause, which are not entirely established by writings, shall be brought by the same writ, after which the other actions in which there are no written proofs shall not be maintainable. 1347. The above rules are subject to exception when there exists a commencement of written proof. C.N. X 306 OF CONTRACTS IN GENERAl/. Any instrument in writing which emarjates from the person against whom the action is brought, or from the person he represents, and which tends to n^ake the alleged fact probable, is called a commencement of written proof. Civ. C. 324, 1320, 1329, 1335 et s., 1341, 1353, 1356, 1360, 1985. 1348. They are also subject to exception whenever it has not been possible for the creditor to procure written proof of the obligation which has been contracted towards him. This second exception applies : — 1. To obligations arising from quasi-contracts, and torts or quasi-torts ; 2. To obligatory deposits made in case of fire, destruction, disturbance or wreck, and to those made by travellers when stopping in an hotel, all of which shall be according to the standing of the persons and the circumstances surrounding the facts ; 3. To obligations contracted in case of unforeseen accidents, when instruments in writing could not have been made ; 4. In case the creditor has lost the instrument which served as written proof in consequence of an unforeseen accident resulting from superior force. Civ. C. 1131, 1341, 1353, 1371, 1382 et s., 1949 et s. § 3. 0/ Presumptions. 1349. Presumptions are consequences which the law or the Judge draws from a known fact to an unknown fact. Sub-sect. 1. Of Presumptions established hy Law. 1350. A legal presumption is one which a special law applies to certain acts or certain facts ; such are : — OP CONTRACTS IN GENERAL. 30Y 1. Acts which the law declares to be null as supposed to have taken place in violation of its provisions from their very nature ; 2. Cases in which the law declares that ownership or exoneration results from certain special circumstances ; 3. The weight which the law gives to a res.adjudicata ; 4. The weight which the law gives to an admission of a party or to his oath. Civ. C. 553, 653, 720, 911, 1099 ■d s., 1282, 1330, 1525, 1569, 1908. 1351. The weight of a res adjudicata only extends to what forms part of the judgment. The thing sued for must he the same ; the action must be based on the same <;ause ; the action must be between the same parties, and brought by the same parties against the same parties in the same capacity. Civ. C. 802, 840, 843, 1109, 1110, 1147, 1165, 1220, 1221, 1235, 1350, 1376, 1654, 1802, 1844, 2033, 2243, 2262. 1353. Legal presumption makes away with the necessity for any proof on the part of the person in whose favour it exists. No proof is allowed against a presumption of the law, when, upon the basis of such presumption, the law annuls certain acts, or defeats the action in court, unless the law reserves the right to prove the contrary, subject to what shall be stated with respect to oaths and judicial ad- missions. Civ. C. 312 et s., 911, 1099, 1351. Sub-sect. 2. Of Presumptions which are not established by Law. 1353. Presumptions which are not established by law are left to the learning and prudence of the Judge, who shall only admit presumptions which are serious, exact and consistent, and only in the cases in which the law admits oral proofs, unless the instrument is attacked on X 2 308 OF CONTRACTS IN GENERAL, account of fraud or deceit. Civ. C. 913, 1116, 1134, 1239, 1315, 1319, 1341, 1347, 1348, 1356, 2085. §4. Of Admissions of the Party. 1354. An admission wLich is set up against a party is either extra-judicial or judicial. 1355. The allegation of an extra-judicial admission which is purely verbal is useless whenever the action is one in which oral evidence would not he received. Civ. C. 1341. 1356. A judicial admission is a declaration made in court by the party or his special attorney-in-fact. It produces full force against the person who has made it. It cannot be divided against such person. It cannot be revoked unless it is proved that it results from an error of fact. It could not he revoked on the ground of an error of law. Civ. C. 1108, 1109, 1330, 1353, 1923, 1924, 1993, 1998. § 5. Of Oaths. 1357. Judicial oaths are of two kinds : 1. Those which one of the parties proffers to the other to make the judgment in the case depend upon them. They are called decisive oaths ; 2. Those which are proffered by the Judge of his own accord to either of the parties. Civ. C. 1358, 1359, 1360, 1361, 1366, 1367. Sub-sect. 1. Of Decisive Oaths. 1358. A decisive oath can be proffered in all kiads of controversies whatsoever. Civ, C. 1359, 1360, 1361, 1366, 1715, 2275. OF CONTRACTS IN OENBEAL. 309 1359. It can only be proffered with respect to a fact whicli is personal to the party to whom it is proffered. Civ. C. 1362. 1360. It can be proffered at all stages of the case, and even if there does not exist a commencement of proof of the claim, or of the exception in connection with which it is proffered. Civ. C. 1347, 1364. 1361. A person to whom an oath is proffered and who refuses to take it, or who does not consent to have it taken by his opponent, or an opponent to whom it has been left to take the oath and who refuses to take it, shall be defeated in his claim or in his exception. Civ. C. 1350, 1358, 1368. 1363. An oath cannot be proffered back when the act to which it relates has not been performed by both parties, but is purely personal to the one to which the oath had been proffered. Civ. C. 1359. 1363. When an oath proffered or proffered back has been taken, the adversary is not allowed to prove that it is false. Civ. C. 1350 et s., 1358, 1365. 1364. A party to whom the oath is proffered, or who leaves it to the other to take it, cannot withdraw when his adversary declares that he is ready to make oath. 1365. The oath taken only constitutes a proof for the benefit of the person who has proffered it or against him, and for the benefit of his heirs or legal representatives or against them. Nevertheless, the oath proffered to a debtor by one of the creditors, towards whom he is jointly and severally liable, only releases the former as to the portion of such creditor. The oath proffered to the principal debtor also releases the sureties. 310 OF CONTRACTS IN GENERAL. The oath proffered to one of the debtors jointly and sBTerally liable benefits the co-debtors. And the oath proffered to the sureties produces its effect with respect to the principal debtor. In the two last cases the oath of the co-debtor jointly and severally liable, or of the sureties, only produces its effect with respect to the other co-debtors, or to the prin- cipal debtor, when it has been proffered as to the debt, and not as to the fact of the joint and several liability, or of the security. Civ. C. 1208, 1287, 2034. Sub-sect. 2. Of Oaths administered hy the Court of its own accord. 1366. A Judge may proffer an oath to one of the parties, either to make the decision of the case result from it, or only to fix the amount of the judgment. Civ. C. 1315, 1341, 1353, 1367, 1716, 1924. 1367. A Judge can only of his own accord proffer an oath, either upon the claim or upon the exception set up, under the two following conditions ; it is necessary : — 1. That the claim or the exception should not be fully established ; 2. That it should not be wholly without proof Outside of these two cases the Judge must either admit or reject the claim absolutely. 1368. An oath proffered by a Judge to one of the parties of his own accord, cannot be left by such party to be taken by the other. 1369. An oath as to the value of a thing claimed can only be proffered to the plaintiff by the Judge when it is impossible to establish its value in a different way. The Judge must even in such case fix the amount to the extent of which the plaintiff shall be believed on his oath. ( 311 ) Title Foujrth. op agreemekts which are formed without contract. (Passed 9th February, 1804 ; promulgated 19th of same month.) 1370. Certain agreements are formed without any con- tract being made, either on the part of the party who binds himself, or on the part of the one towards whom such party is bound. Some of them result from the operation of the law alone ; others arise in connection with a fact which is personal to the party who is bound. The former ones are the agreements entered into in- voluntarily, such as those between neighbouring landowners, or those of guardians, or other administrators who cannot refuse the duties imposed upon them. Agreements arising in connection with a fact which is personal to the party who is bound result either from quasi- contracts or from torts or quasi-torts ; they form the subject of the present Title. Civ. C. 419, 450, 637 et s., 1371, 1382 et s. 312 OF AGREEMENTS WITHOUT CONTRACT. Chap. I. Of Quasi- Contracts. 1371. Quasi-contracts are the purely voluntary acts of an individual from which a certain agreement results in favour of a third party, and sometimes a reciprocal agree- ment between two parties. 1372. When a person voluntarily manages another's business, whether the owner knows of such management or whether he does not, the person who manages such business contracts the tacit agreement to continue the management which he has commenced and to carry it on until the owner is in a position to look after the business himself. He must also take charge of everything connected therewith. He submits to all the obligations which would result from an express power of attorney which the owner might have given him. Civ. C. 1341, 1984, 1991, 1993, 2007. 1373. He is obliged to continue his management, even if the owner dies before the business is ended, up to the time the heir has been able to assume the management thereof. Civ. C. 1991. 1374. He is obliged to devote to the management of the business all the care of a prudent owner. Nevertheless, the circumstances which have led him to take charge of the business may authorize the Judge to diminish the damages which might result from the laches or negHgence of the manager. Civ. C. 1137, 1382. 1375. An owner whose business has been properly managed must fulfil the agreements which the manager has entered into in his name ; ibe must hold him harmless for all the personal agreements which he has assumed OF AGREEMENTS WITHOUT CONTRACT. 313 and repay to him all the useful or necessary expenses wHch he has incurred. Civ. C. 1315, 1353, 1372, 1377, 1984, 1985, 1998, 2001. 1376. A person who receives by mistake or knowingly what is not due to him binds himself to return it to the individual from whom he has unduly received it. Civ. 0. 1235, 1906. 1377. When a person thought by mistake he owed a debt and has paid it, he has the right to claim it back from the creditor. Nevertheless, this right ceases in case the creditor has suppressed his written proof in consequence of the payment, subject to the remedy of the person who has paid against the real debtor. Civ. C. 1906, 1967. 1378. If there has been bad faith on the part of the person who has received payment he is bound to restore the capital, together with the interest or the revenue, from the day of the payment. Civ. C. 549, 550, 1153, 1381, 1382, 1579, 1635, 2262. 1379. If the thing unduly received is real estate or corporeal personal property, the person who has received it binds himself to restore it in kind, if it exists, or its value if it has been destroyed or damaged owing to him ; he is also answerable for its loss by accident if he has received it in bad faith. Civ. C. 1137, 2268. 1380. If the person who has received the thing in good faith has sold it he is only obliged to return the price of the sale. Civ. C. 1238, 1935, 2268. 1381. The person to whom the thing is returned must make good, even to the possessor in bad faith, all the 314 OF AGEBBMENTS WITHOUT CONTRACT. necessary or useful expenses which have been incurred for the preservation of the thing. Civ. C. 1378, 1886, 1890, 2102, 2103. Chap. II. Of Torts and Quasi-Toets. 1383. Every act whatever of an individual which causes injury to another obliges the one owing to whom the same has occurred to make it good. Civ. C. 1142, 1146, 1149, 1310. 1383. Every one is responsible for the injury which he has caused not only owing to his own act, but owing to his negligence or his imprudence. Civ. C. 1146. 1384. A person is responsible not only for the injuries which he causes owing to his own act, but also for those which are caused by the acts of persons for which he is answerable or by things which are under his care. The father, and the mother after the death of the husband, are responsible for injuries caused by their minor children living with them. Masters and employers are responsible for injuries caused by their servants and employees in connection with the duties for which they are employed. Schoolmasters and mechanics are responsible for injuries caused by their pupils and apprentices during the time they are under their supervision. The above liability exists imless the father, the mother, the schoolmasters or mechanics prove that they were unable to prevent the act which gives rise to such liability. Civ. C. 372, 1953, 1997. OF AGREEMENTS WITHOUT CONTRACT. 315 1385. The owner of an animal, or the person who uses it while he has the use of it, is liable for the injuries which the animal has caused, whether the animal was under his care or whether it was lost or got loose. 1386. The owner of a building is responsible for the injuries caused by its destruction when such destruction has taken place owing to his not keeping it in good order or owing to bad construction. ( 316 ) Title Fifth. of marriage contracts and of the rbspecth'e rights of husband and wife. (Passed 10th February, 1804 ; promulgated 20tli of same month.) Chap. I. General Provisions. 1387. The law only regulates conjugal relations with respect to property when there is no special agreement, but the husband and wife may enter into any agreement they deem proper, provided it is not contrary to good morals, and besides, is subject to the following restrictions. Civ. C. 6, 900, 1133, 1172, 1392, 1393, 1428, 1494, 1514, 1540, 1554. 1388. A husband and wife cannot derogate from the rights resulting from the husband's marital powers over the person of the wife and of the children or which belong to the husband as head of the family, nor from the rights conferred upon the survivor of the husband or wife under the Title Of Paternal Authority and the Title Of Minority, of Guardianship and of Emancipation, nor from the pro- hibitory provisions of the present Code. Civ. C. 213, 371 et s., 389, 476, 1497, 1527. 1389. They cannot make any agreement or renunciation of which the object would be to change the legal order of succession, either with respect to themselves in the succes- OF MAEEIAGE CONTRACTS, ETC. 317 sion of their children or descendants or with respect to their children among themselves ; without prejudice to the donations inter vivos or mortis causd which may he made according to the manner and in the cases provided for in the present Code. Civ. C. 791, 1130. 1390. A hushand and' wife can no longer stipulate in a general manner that their association shall be governed by the customs, laws or local statutes which were heretofore in force in the various parts of French territory and which are repealed by the present Code. 1391. They may, nevertheless, declare in a general manner that they intend to marry under the system of community or imder the dotal system. In the first case and under the system of community the rights of the husband and wife and of their heirs are regulated by the provisions of chapter II. of the present Title. In the second case and under the dotal system their rights shall be regulated by the provisions of chapter III. Nevertheless, if the certificate of celebration of marriage bears that the husband and wife have been married with- out a contract, the wife shall be considered, with respect to third parties, as having the capacity of contracting in accordance with the provisions of common law, unless she has declared in the instrument which contains the engage- ment on her part that she has made a marriage contract. 1392. A simple stipulation to the efiect that the wife has settled upon herself, or that another person has settled upon her, some property as dowry, is not sufficient to make the property come within the dotal system, unless there is an express declaration to that effect in the marriage con- tract. The selection of the dotal system does not result from the 318 OF MARRIAGE CONTRACTS, ETC. simple declaration made by tlie husband and wife that they marry without community or that they shall be separated as to property. Civ. C. 1540 et s. 1398. In default of special stipulations derogating from the system of community or modifying it, the rules estab- lished in the first part of chapter II. shall constitute the common law of France. 1394. All matrimonial agreements shall be drawn up prior to the marriage in an instrument made before a notary. The notary shall read to the parties the last paragraph of art. 1391 and also the last paragraph of the present article. It shall be mentioned in the contract that this reading has taken place, under penalty of a fine of ten francs against the notary who is the offender. The notary shall deliver to the parties at the time of signing the contract a certificate on unstamped paper and without cost stating his full names and his place of resi- dence, the names, first names, occupation and residence of the future husband and wife, and also the date of the con- tract. This certificate shall show that it is to be delivered to the officer of civil status before the celebration of the marriage. Civ. C. 1120, 1320, 1338, 1341, 1387. 1395. They cannot in any way be altered after the celebration of the marriage. Civ. C. 780, 1076, 1079, 1083, 1093, 1130, 1353, 1388, 1396, 1421, 1422, 1451, 1543, 1835, 1855 et s. 1396. The changes which might have been made therein before such celebration shall be mentioned in an instrument drawn up in the same manner as the marriage contract. Moreover, no change or defeasance is valid without the presence and simultaneous consent of all the persons who have been parties to the marriage contract. Civ. 0. 1321, 1394, 1397, 1451. OP MARRIAGE CONTRACTS, ETC. 319 1397, All changes or defeasances, even wlien made in accordance with the requirements of the foregoing article, shall be null with respect to third parties if they have not been drawn up at the end of the original marriage contract ; and the notary shall not be able to deliver an exemplified copy for execution, nor certified copies, of the marriage con- tract, without writing out at the end the changes or the defeasances, under penalty of damages to the parties and under a heavier penalty if proper. Civ. C. 1321, 1396, 1556. 1398. A minor who is able to contract marriage is able to enter into all agreements which such a contract is suscep- tible of; and the conditions and donations made therein by him are valid, provided he has had in making the contract the assistance of the persons whose consent is necessary for the validity of the marriage. Civ. C. 144 et s., 818, 1095, 1309, 1557. Chap. II. Of the System of Community. 1399. Commimity, whether legal or conventional, com- mences from the day of the marriage contracted before the officer of civil status : it cannot be stipulated that it shall commence at any other time. Civ. C. 1451, 1497 et s. First Part, of legal community. 1400. Community which is established by the simple declaration that the persons marry under the system of community, or by the non-existence of a contract, is 320 OP MAREIAGE CONTEACTS, ETC. governed by the rules contained in the six following sections. §1.0/" what forms part of the Community as to Assets and Liabilities. Suh-sect. 1. Of Community Assets. 1401. Community is composed as to assets : 1. Of all the personal property which the husband and wife own at the time of the celebration of the marriage, together with all the personal property which comes to them during the marriage, either by way of succession or even donation, unless the donor has provided differently ; 2.'j,0f all profits, revenues, interest and arrears, of what- ever nature they may be, which may have become due or have been collected during the marriage and coming from the property belonging to the husband and wife at the time of the celebration of the marriage, or from the property which has come to them during the marriage, in whatever way it may be ; 3. Of all the real estate which is acquired during the marriage. Civ. C. 529, 1393, 1400, 1404, 1433, 1437, 1470, 1497, 1498, 1500. 1402. Every piece of real estate is considered an acquest of the community unless it is proved that the husband or the wife had the ownership or legal possession thereof pre- viously to the marriage or unless it has come to one of them since the marriage, by way of succession or donation. Civ. C. 1352, 1401, 1404, 1435. 1403. The cut of wood and the products of quarries and mines form part of the community as regards every portion thereof which is considered as usufruct in accordance with the rules explained under the Title Of Usufruct, of Use and of Habitation. OF MARRIAGE CONTRACTS, ETC. 32 i If the cut of wood which, according to such rules, should have heen made during the community has not been so made, compensation therefor shall be due to the husband or wife who is not the owner of the property or to his or her heirs. If the quarries and mines have been opened during the marriage the products thereof only form part of the com- munity subject to compensation or an indemnity in favour of the husband or wife to whom the same may be due. Civ. C. 521, 585, 1437. 1404. Real estate which the husband and wife owned at the time of the celebration of the marriage or which comes to them during its continuance, by way of inheritance, does not form part of the community. Nevertheless, if the husband or wife has acquired some real estate since the marriage contract, but before the cele- bration of the marriage, with the stipulation that it should be community property, the real estate acquired during that time shall form part of the community unless the acquisition has been made in consequence of some clause of the marriage contract, in which case it shall be dealt with in accordance with the agreement. Civ. C. 1470, 1493. 1405. Donations of real estate which are made during the marriage to one only of the two married persons do not form part of the community and belong to the donee alone, imless the donation expressly states that the thing given shall belong to the commimity. Civ. C. 1470, 1493. 1406. Eeal estate left or assigned by the father, mother, or other ascendants to the husband or wife, either to make up what is due to him or her, or upon condition of paying the donor's debts to third parties, does not form part of the community, subject to compensation or indemnity. Civ. C. 1075, 1437, 1552, 1553. C.N. Y 322 OF MARRIAGE CONTRACTS, ETC. 1407. Eeal estate acquired during the marriage by way of exchange for real estate belonging to the husband or wife does not form part of the community, and is subrogated to the place and stead of the real estate which has been conveyed, subject to compensation if there is a balance due. Civ. C. 1437. 1408. A purchase made during the marriage, at pubHc sale or otherwise, of a part of some real estate of which the husband . or wife was the joint owner does not con- stitute an acquest ; but the community shall receive an indemnity for the sum which it has expended upon such purchase. In case the husband becomes the purchaser or highest bidder, alone and in his own name, of a portion or of the whole real estate belonging jointly to the wife, the latter at the dissolution of the community may at her choice either abandon the property of the community, which community then becomes the debtor of the wife for the portion of the price due to her, or take the real estate and reimburse the purchase price to the community. Civ. C. 883, 1437, 1470, 1493. Sub-sect. 2. Of the Liabilities of the Community and of the Actions resulting therefrom against the Community. 1409. The liabilities of the community consist in : 1. AU the personal debts which the husband and wife owed at the time of the celebration of their marriage or with which the successions coming to them during the mar- riage are burdened, subject to compensation for all debts relating to real estate belonging individually to either the husband or the wife ; 2. The debts contracted by the husband during the com- munity or by the wife with the consent of the husband, as well with respect to the principal as to interest and income. OF MARRIAGE CONTRACTS, ETC. 323 subject to compensation in the cases in wHch it takes place ; 3. The revenues and arrears of the annuities only, or of the liabilities which are personal to both the husband and wife ; 4. The repairs to real estate which does not form part of the community and due on account of a usufruct ; 5. The expenses of support of the husband or wife, of the education and maintenance of the children, and of all other charges resulting from the marriage. Civ. C. 203, 207, 214, 529, 612, 1410, 1422 et s., 1426, 1437 et s., 1510. 1410. The community is only liable for the personal debts contracted by the wife previously to the marriage, if they result from an official instrument which has been made before the marriage or which has received a positive date before that time, either by registration or by the death of one or more of the subscribers to the said in- strument. A creditor of the wife by virtue of an instrument which has no positive date previously to the marriage can only proceed against her for payment upon her individual real estate in fee. A husband who claims to have paid a debt of this kind for his wife cannot ask her or her heirs to repay him there- for. Civ. C. 1328, 1424, 1485. 1411. The debts of successions purely personal which come to the husband and wife during the marriage shall all be paid out of the community. Civ. C. 1418, 1496. 1412. The debts of a succession purely of real estate which comes to the husband or wife during the marriage shall not be paid out of the community, subject neverthe- less to the right which belongs to the creditors to pro- T 2 324 OF MAEEIAGE CONTRACTS, ETC. ceed against the real estate of the succession to obtain payment. Nevertheless, if the succession comes to the husband, the creditors may proceed to obtain payment either against all the individual property of the husband or even against the property of the community ; but in the latter case compen- sation is due to the wife or to her heirs. Civ. C. 1437. 1413. If a succession purely of real estate comes to the wife and she has accepted it with the consent of her husband, the creditors of the succession may proceed to recover pay- ment against all the individual property of the wife ; but if the succession has only been accepted by the wife with the authority of the Court upon the refusal of the husband, the creditors, in case the real estate of the succession is insuffi- cient, can only proceed against the individual property of the wife owned absolutely. Civ. C. 217, 1417, 1426. 1414. When the succession coming to the husband or wife is partly of personal and partly of real estate, the debts with which it is encumbered shall only be paid out of the community to the extent of the portion which the personal property should contribute towards the payment of debts according to the value of such personal property when com- pared with the value of the real estate. This proportionate part is fixed according to the inventor} which the husband must cause to be drawn up, either for his own account, if the succession concerns him personally, or as directing and authorizing his wife's acts in case the succession comes to her. 1415. If there is no inventory, and in aU cases in which the absence of an inventory is prejudicial to the wife, she or her heirs may, upon the dissolution of the community, pro- ceed to recover the repayments lawfully due, and may even prove the nature and the value of the personal property not OF MABRIAGB OONTRACTS, ETC. 325 inventoried, as well by private documents and papers as by witnesses, and if necessary by common repute. A husband is never allowed to make such proof. Civ. C. 1442, 1499, 1504, 1510. 1416. The provisions of article 1414 do not prevent the creditors of a succession which is partly of personal property and partly of real estate from proceeding to recover pay- ments out of the property of the community, whether the estate has come to the husband or whether it has come to the wife, when the latter has accepted it with the consent of the husband ; all of which is subject to the repayments respectively due. The same rule applies if the succession has only been accepted by the wife with the authority of the Court, and if nevertheless the personal property has been mixed up with the property of the community without any previous inven- tory. Civ. C. 1437, 1470, 1493, 1524. 1417. If the succession has been accepted by the wife, only with the authority of the Court upon the refusal of the husband, and if an inventory has been made, the creditors can only proceed to recover payment against the property, personal or real, of the said succession, and in case of insuffi- ciency against the other individual property which the wife owns absolutely. Civ. C. 219, 1413, 1424 et s. 1418. The rules established in article 1411 et s. apply to the debts in connection with a donation as well as to those resulting from a succession. 1419. Creditors can proceed to recover payment of the debts which the wife has contracted with the husband's consent, as well against all the community property as against the property of the husband or wife ; subject to the com- pensation due to the community or the indemnity due to the husband. Civ. C. 1401, 1426, 1437, 1470, 1493. 826 OF MAKEIAGE CONTRACTS, ETC. 14S0. All debts which have been contracted by the wife, only by virtue of a general or special power of attorney from the husband, shall be paid by the community; and the credi- tor cannot proceed to recover payment either against the wife or against her personal property. Civ. C. 1409, 1998. § 2. 0/" Administration of the Community and of Effects of Acts of the Husband or Wife with respect to Conjugal Partnership. 1421. The husband has the sole management of com- munity property. He can sell, convey, and mortgage it without the co- operation of the wife. Civ. C. 818, 1401, 1428, 1507, 2208. 1422. He cannot dispose inter vivos of the real estate belonging to the community, nor of the whole or part of the personal property, without consideration, unless it is for the establishment of children of the marriage. Nevertheless, he may dispose, without consideration and specifically, of tbe personal property in favour of all persons, provided he does not retain the usufruct for himself. Civ. C. 1401, 1437, 1439, 1469. 1423. A donation mortis causd made by the husband cannot exceed his share of the community. If he has given in this manner a thing belonging to the community, the donee can only claim the thing in kind if, owing to the result of a division, it falls to the share of the husband's heirs : if the thing does not fall to the share of such heirs, the legatee is entitled to the repayment of the whole value of the thing given out of the share of the husband's heirs in the community and out of the individual property of such husband. Civ. C. 1021, 1474. OP MARRIAGE CONTRACTS, ETC. 327 1424. The fines imposed upon the husband for a crime which does not occasion civil death (w), can be enforced against community property, subject to the indemnity due to the wife : those imposed upon the wife can only be collected from the individual property of which she has the fuU ownership, so long as the community lasts. Civ. C. 1409, 1425, 1426, 1437. 1425. Sentences passed upon the husband or wife for a crime occasioning civil death («), can only be enforced against his or her share of the community, and his or her individual property. 1426. The acts performed by the wife without the husband's consent, and even with the authority of the Court, do not affect community property unless she has acted as a public trader, and for the purposes of her trade. Civ. C. 217, 1549. 1427. Awife cannot bind herself, nor bind the community property, even to get her husband out of prison, or for the establishment of her children in case of her husband's absence, without being authorized by the Court. Civ. C. 217, 1535, 1555. 1428. A husband has the management of all the in- dividual property of the wife. He can institute alone all personal and possessory actions which belong to the wife. He cannot convey his wife's individual real estate without her consent. He is responsible for all damages to the individual property of the wife caused by his omission to take proper measures of preservation. Civ. C. 818, 1421, 1429, 1492, 1498, 1507, 1549, 2121, 2135, 2185, 2254. {n) Civil deatk was abolisted by the law of 31st May, 1854. 328 OF MAKEIAGE CONTRACTS, ETC. 1429. Leases made by the Imsband alone for property belonging to the wife for a time exceeding nine years are, in case of dissolution of the community, only binding upon the wife or her heirs for the time which remains to run, either of the first period of nine years, if the parties are still within the same, or of the second, and so on, so that the lessee only has the right to complete the time of tenancy of ^he period of nine years in which he is. Civ. C. 595, 1718. 1430. Leases for nine years. or less which the husband alone has executed or renewed for property of his wife more than three years before the expiration of the running lease in case of country property, and more than two years before the same time in case of house property, shall be void unless they have commenced to run previously to the dissolution of the community. Civ. C. 1441, 1718. 1431. A wife who binds herself jointly with her husband for matters of the community, or relating to the husband, is, with respect to him, only presumed to have bound her- self as surety ; she must be indemnified for the obligation which she has assumed. Civ. C. 1200, 1214, 1216, 1482, 2011 et s., 2032, 2135. 1438. A husband who guarantees, jointly and severally or otherwise, a sale made by the wife of some of her indi- vidual real estate, has likewise a remedy against her if he is attacked, either upon her share of the community or upon her individual property. Civ. C. 1200, 1478. 1433. If real estate belonging to the husband or wife has been sold, or if land burdens relating to a tenement belonging individually to one of them have been redeemed in cash, and the price thereof has been paid to the community without any part of it being re-invested, such price shall be taken out of the community for the benefit of the husband or wife who OP MARRIAGE CONTRACTS, ETC. 329 ■was owner, either of the real estate sold or of the burdens redeemed. CIt. C. 1315, 1470, 1493, 1497, 1525. 1434. The re-investment is supposed to have been made with respect to the husband, whenever upon a purchase he has declared that it has been paid for with the monies coming from the sale of real estate which belonged to him individually, and that such purchase is to stand as a re- investment for his benefit. Civ. C. 1470, 1493. 1435. A declaration of the husband that the purchase is made with the monies coming from a sale of real estate made by the wife, and is to be a re -investment for her benefit, is not sufficient if such re-investment has not been formally accepted by the wife ; if she has not accepted it she simply has the right upon the dissolution of the community to the repayment of the price of her real estate so sold. Civ. C. 1434, 1437. 1436. The repayment of the price of real estate belonging to the husband is only taken out of the assets of the community ; the repayment of the price of real estate belonging to the wife is taken out of the individual pro- perty of the husband in case the community property is insufficient. In all cases the repayment is only made on the basis of the sale, whatever allegations may be made concerning the value of the real estate sold. Civ. C. 1470. 1437. Whenever a sum is taken out of the community to pay the individual debts or charges of the husband or wife, such as the price or part of the price of individual real estate, or the redemption of land burdens or the recovery, preservation, or improvement of his or her indi- vidual property, and generally whenever the husband or wife has derived a personal benefit from property belonging to the community, he or she owes the repayment thereof 330 OF MAERIAGE CONTRACTS, ETC. Civ. C. 553, 555, 1406, 1409, 1412 et s., 1422, 1423, 1468, 1469, 1473, 1510, 1554, 2133. 1438. If the father and mother haye jointly endowed a child of the marriage without mentioning what portion they meant to contribute, they are supposed each of them to have endowed such child for one-haK, whether the dowry has been furnished or promised in property of the community, or in individual property of the husband or wife. In the second case the husband or wife whose real estate or personal property has been given as dowry has against the property of the other an action for an indemnity of one- half of such dowry based upon the value of such property at the time of the donation. Civ. C. 843, 1422, 1544. 1439. A dowry given by the husband alone to a child of the marriage out of property of the community is a charge upon the community; and in case the wife accepts the community she is obliged to contribute one-half of the dowry unless the husband has expressly declared that he assumed the whole of it, or a part greater than the half Civ. C. 1422. 1440. Every person who gives a dowry is obHged to guarantee it, and the interest runs from the day of the marriage, even if time is allowed for payment, unless there is some stipulation to the contrary. Civ. C. 1547. I 3. Of the Dissolution of the Community, and of some of its consequences. 1441. The community is dissolved : 1. By natural death; 2. By civil death (o) ; 3. By divorce ; (o) Civil death was abolished by the law of Slst May, 1854. OF MARRIAGE CONTRACTS, ETC. 331 4. By separation from bed and board ; 5. By separation of property. Civ. C. 306, 311, 1443. 1442. The failure to make an inventory after the natural or civil death (p) of the husband or wife does not cause the community to continue, subject to the proceedings which interested parties may institute with relation to the com- position of the property and effects of the community, and the proof thereof may be made as well by documents as by common repute. If there are minor children the non-existence of an in- ventory also makes the surviving husband or wife lose the enjoyment of their income ; and the assistant guardian who has not compelled such husband or wife to make an inven- tory is jointly and severally liable with him or her for all judgments which may be rendered in favour of the minors. Civ. C. 384, 795, 1415, 1456, 1470, 1471, 1472, 1482, 1566, 1567. 1443. A. separation of property can only be sued for in court by the wife whose dowry is in danger, and when the husband's affairs are in such disorder that there is reason to fear that his property will not be sufficient to answer for the wife's rights and claims. All voluntary separations are void. Civ. C. 1447, 1563. 1444. A separation of property, although ordered by the Court, is void unless it has been carried out by the actual settlement of the rights and claims of the wife made by a pubKc instrument to the extent of the husband's property, or at least unless proceedings have been commenced within a fortnight of the judgment, and have not been suspended since then. Civ. C. 1463. (p) Civil death was abolished by the law of 31st May, 1854. 332 OF MAERIAGE CONTRACTS, ETC. 1445. Every separation of property must be made public before it takes effect, by a notice posted on a notice-board intended for that purpose in the principal room of tbe Tribunal of First Instance, and also, if the husband is a merchant, banker, or trader, in such room at the Tribunal of Commerce of the place of his domicil ; and if all this has not been done, the judgment shall be void. A judgment ordering a separation of property extends back as to its effects to the day of the beginning of the suit. Civ. C. 1153. 1446. The wife's personal creditors cannot apply for a separation of property without her consent. Nevertheless, in case of bankruptcy or insolvency of the husband, they may enforce the rights of their debtor to the extent of the amount of their claims. Civ. C. 1166, 1464, 2121. 1447. The husband's creditors can attack the separation of property ordered, and which tends to defraud them of their rights : they can even join in the suit for separation to oppose it. Civ. C. 1167, 1464. 1448. A wife who has obtained a separation of property must contribute as well to the household expenses as to those of the education of the children of the marriage, in proportion to her means and those of her husband. She shall bear these expenses entirely if the husband has nothing left. Civ. C. 203, 212 et s., 214, 1537, 1575. 1449. A wife separated, either from bed and board or only as to property, regains the independent management of her property. She can dispose of her personal property and convey it. She cannot dispose of her real estate without the consent of her husband, or without being authorized by the Court OF MAERIA6E CONTRACTS, ETC. 333 in case of his refusal. Civ. C. 217, 1188, 1222, 1234, 1536 et s., 1549, 1563, 1595, 1719, 1728. 1450. A husband is not answerable for the omission to invest or re-invest the proceeds of real estate which the wife, who is separated as to property, has conveyed with the consent of the Court, unless he has taken part in the contract, or it is proved that the monies have been received by him, or have been of benefit to him. He is answerable for the omission to invest or re-invest if the sale has been made in his presence and with his consent. He is not answerable for the soundness of such investment. 1451. A community which is dissolved by a separation, either from bed and board or as to property only, can be re-established by the consent of both parties. This can only be done by an instrument executed in the presence of notaries, the original being filed and a certified copy thereof being published in the manner set forth in article 1445. In such case the community which is re-established pro- duces its effect from the time of the marriage ; things are put back in the same state as if there had been no separa- tion, without prejudice, nevertheless, to the carrying out of the agreements which have been entered into during such interval by the wife in accordance with article 1449. Any agreement by which the husband and wife re-estab- lish their community under difierent conditions from those which governed it previously shall be void. Civ. C. 311, 1394, 1445. 1453. A dissolution of community brought about by a divorce, or a separation from bed and board or as to property only, does not entitle the wife to her rights as survivor ; but 334 OF MAEKIA6E CONTRACTS, ETC. she retains the right to enforce them upon the natural or civil death {q) of her hushand. Civ. C. 311, 1443 et s 1518. §4. Of Acceptance of the Community and of the Renunciation tchich can he made, with the Conditions relating thereto. 1453. After the dissolution of the community the wife or her heirs and legal representatives have the right to accept or renounce it : any agreement to the contrary is void. Civ. C. 1463, 1466, 1492. 1454. A wife who has interfered withjthe property of the community cannot renounce the community. Acts of pure administration or preservation do not amount to an interference. Civ. C. 778, 779, 1463. 1455. A wife of full age who, in a public instrument, has assumed the capacity of partner in the community, cannot renounce the community nor cause such capacity to be taken away from her, even if she has assumed it before she has had an inventory drawn up^ unless there has been fraud on the part of the husband's heirs. Civ. C. 1116 et s. 1456. A wife who survives and wishes to retain the right to renounce the community must, within three months of the day of her husband's death, cause a true and correct inventory to be made of aU the community property, the husband's heirs being represented or having been duly summoned. Upon the closing of the inventory she shall af&rm, in the presence of the public officer who has drawn it up, that it is true and correct. Civ. C. 793, 1457, 1459, 1466. {q) Civil death was'abolished by the law of 31st May, 1854. OF MARRIAGE CONTRACTS, ETC. 335 1457. She must make her renunciation, at the clerk's office of the Tribunal of First Instance in the District where her husband had his domicU, within three months and forty days from his death : this instrument must be recorded in the register kept to receive the renunciations of successions. Civ. C. 1461, 1465. 1458. A widow may, according to circumstances, apply to the Tribunal of First Instance for an extension of the time fixed by the foregoing article for her renunciation : this extension shall, if necessary, be ordered, the husband's heirs being represented or having been duly summoned. Civ. C. 798, 1461. 1459. A widow who has not made her renunciation within the time above mentioned does not forfeit her right to renounce if she has not interfered and made an inventory. Proceedings, however, may be taken against her as partner of the community until she has renounced, and she owes the expenses made against her up to the time of her renunciation. Proceedings can likewise be brought against her after the expiration of the forty days from the closing of the inventory if it has been closed before the three months. Civ. C. 800, 1461 et s. 1460. A widow who has made away with or concealed efi'ects of the community shall be declared to be a partner of the community, notwithstanding her renunciation : the same rule shall apply to her heirs. Civ. C. 792, 801, 1477, 1483. 1461. If a widow dies before the expiration of the three months without having made or completed the inventory, the heirs shall have a new period of three months from the 336 OF MAEEIAGE CONTRACTS, ETC. death of the widow to make or complete the inventory and of forty days for deliberation after the inventory is closed. If the vridow dies after completing the inventory, her heirs shall have a new period of forty days from the time of her death for deliberation. They may, moreover, renounce the community in the manner hereabove set forth ; and articles 1458 and 1459 shaU apply to them. Civ. C. 1466, 1475, 1491. 1462. The provisions of article 1456 et s. shall apply to the wives of individuals civilly dead {r) from the time the civil death has commenced. 1463. A woman who is divorced or separated from bed and board and who has not accepted the community within the three months and forty days since the divorce or the separation has been finally decreed is supposed to have renounced it, unless she has obtained an extension from the Court within that time, the husband having appeared or having been duly summoned. Civ. C. 311, 1458. 1464. The creditors of the wife may attack the renun- ciation which has been made by her or her heirs and by which they would be defrauded of their claims, and may accept the community for their own account. Civ. C. 788, 1167. 1465. A widow, whether she accepts or renounces the community, has the right, during the three months and forty days which are allowed her for making the inventory and for deliberation, to take her food and the food of the servants out of the existing provisions, and if there be none, to borrow for that purpose for account of the assets of the community, provided she makes use of such right with moderation. {r) Civil death was abolished by the law of 31st May, 1854. OF MARRIAGE CONTRACTS, ETC. 337 She owes no rent for tlie premises she may have occu- pied during such time in a house forming part of the community or helonging to the husband's heirs ; and if the house which the husband and wife lived in at the time of the dissolution of the community was occupied by them by virtue of a lease, the wife shall not, during such time, contribute to the payment of the rent, which shall be taken out of the assets. Civ. C. 1495, 1570. 1466. In case of dissolution of the community by death of the wife, her heirs may renounce the community within the time and in the manner provided by law for the sur- viving wife. Civ. C. 1453, 1475, 1491. ^ 5. Of Division of the Community after Acceptance. 1467. After acceptance of the community by the wife or her heirs, the assets are divided and the liabilities are assumed in the manner hereinafter set forth. Civ. C. 815, 1401, 1453 et s., 1468 et s., 1522. Sub-sect. 1. Of Division of Assets. 1468. The husband or wife or their heirs must return to the general assets composing the existing property, all they owe the community by way of compensation or indemnity, according to the rules hereabove mentioned in section 2 of the first part of the present chapter. Civ. 0. 1422 et s., 1435 et s. 1469. The husband or wife, or his or her heirs, must likewise return the sums which have been taken out of the community or the value of the property which he or she has used to endow a chUd of another marriage or to endow personally a child of the marriage. Civ. C. 843, 1438, 1439, 1544, 2093. C.N. Z 338 OF MARRIAGE CONTRACTS, ETC. 1470. Out of the general assets of the estate the husband or wife or his or her heirs take : — 1. His or her individual property which has not become community property, if it exists in kind, or the property which has been acquired by way of reinvestment; 2. The price of the real estate belonging to him or her which has been conveyed during the community and of which no reinvestment has been made ; 3. The indemnities which are due to him or her by the community. Civ. C. 1404 et s., 1419, 1481 et s., 1502 et s., 1515 et s. 1471. The repayments to be made to the wife come before those to be made to the husband. They are made as to the property which does not exist in kind, first out of the cash, then out of the personal property, and subsequently out of the real estate of the community : in the last case the choice of the real estate is left to the wife and to her heirs. Civ. C. 832 et s., 1415, 1470, 1472, 1483, 1492, 1493, 1494. 147S. A husband can only enforce his right to take back against the property of the community. In case the community property should be insufficient, the wife and her heirs can enforce their right to take back against the individual property of the husband. Civ. C. 883, 1436, 1470, 1471, 1476, 2121, 2135. 1473. The reinvestments and compensations due to the husband or wife by the community, and the compensations and indemnities due by them to the community, bear in- terest by right from the day of the dissolution of the com- munity. Civ. C. 1441, 1479. 1474. After aU the rights to take back have been satis- fied out of the assets, the surplus is divided by halves be- OF MARRIAGE CONTRACTS, ETC. 339 ween the husband and wife or those who represent them. Jiv. C. 1482, 1571. 1475. If the wife's heirs are divided, so that one has accepted the community which the other has renounced, the one who has accepted it can only take his individual and hereditary share in the property which falls to the wife's portion. The husband retains the surplus and remains liable to the heir who renounces for the rights which the wife might have exercised in case of renunciation, but only to the extent of the individual hereditary share of the heir who has re- nounced. Civ. C. 873, 1466, 1491, 1495. 1476. Otherwise, the division of the community, as to everything which relates to its proceedings, the judicial sale of real estate when necessary, the effects of the division, the guarantee resulting therefrom, and the balance due, is sub- ject to all the rules which are contained in the Title Of Successions in case of divisions among co-heirs. Civ. C. 815, 883, 2103, 2109. 1477. If the husband or wife has made away with or concealed any effects of the community, he or she shall be deprived of his or her share of said effects. Civ. C. 792, 801, 1460. 1478. If either the husband or wife remains the personal creditor of the other after the division is ended, for instance when the proceeds of his or her property have been used to pay a personal debt of the other, or for any other cause, he or she can enforce the claim against the share of the community coming to the other or against the other's individual pro- perty. Civ. C. 1432. 1479. The personal claims which the husband or wife z 2 340 OF MARRIAGE CONTRACTS, ETC. have to bring against each other only bear interest from te day the action is commenced in court. Civ. C. 119 1440, 1473, 1570. 1480. The donations which the husband or wife may have made the one to the other shall only be taken out of the share of the donor in the community and out of such donor's individual property. Civ. C. 1091 et s. 1481. The wife's mourning shall be paid for by the heirs of the prede(;eased husband. The amount to be paid for such mourning is fixed accord- ing to the husband's fortune. The same is due to the wife even when she renounces the community. Civ. C. 1492, 1570. Sub-sect. 2. Of Liabilities of the Community and of Contribution to Debts. 1482. Debts of the community are due by halves by the husband and wife or by their heirs : the expenses for the seals, inventory, sale of personal property, liquidation, judicial sale of real estate and division form part of such debts. Civ. C. 1409, 1456, 1483, 1490, 1510. 1483. A wife is only liable for the debts of the commu- nity, either with respect to the husband or with respect to the creditors, to the extent of her share, provided a true and exact inventory has been made, and taking into account as well the contents of such inventory as what has come to her under the division. Civ. C. 1328, 1409, 1432, 1456, 1510. 1484. The husband is liable for all the debts of the community contracted by him, subject to his remedy against the wife or her heirs for one-half of such debts. Civ. C. 1478, 1482. OF MAERIAGE COKTRAOTS, ETC. 341 1485. He is only liable for one-half of ttose which, were personal to the wife and have fallen into the community, CiT. C. 1410 et s., 1413 et s. 1486. The wife can be sued for all the debts incurred by her and which have fallen into the community, subject to her remedy against the husband or his heir for one-half of such debts. Civ. C. 1410, 1478. 1487. The wife, even when personally liable tor a debt of the community, can only be sued for one- half of such debt, unless she is jointly and severally liable. Civ. C. 1200, 1489. 1488. The wife who has paid a debt of the community beyond her half cannot claim back from the creditor the amount in excess, unless the receipt states that what she paid was for her half. Civ. C. 1235, 1377. 1489. The husband or wife who, owing to the effect of a mortgage encumbering the real estate which has come to him or her upon a division, is being sued for the whole of a community debt, has by right a remedy for one-half of such debt against the other or his or her heirs. Civ. C. 873, 2114. 1490. The foregoing provisions do not prevent one or more of the coparceners from being made to pay upon the division a portion of the debts other than the half and even to pay them in full. Whenever one of the coparceners has paid debts of the community beyond the portion for which he was liable, the one who has paid too much has a remedy against the other. Civ. C. 1482, 1487. 1491. Everything hereabove stated with respect to the 342 OF MARRIAGE CONTRACTS, ETC. husband or wife applies to the heir of either of them ; and such heirs have the same rights and are subject to the same actions as the married person whom they represent. Civ. C. 1461, 1466, 1476, 1495. % 6. Of Renunciation of the Community and its Effects. 1492. The wife who renounces loses all her rights to the property of the community and even to the personal property which has become part of it through her. She only takes back the clothes and linen for her own use. Civ. C. 1463, 1463, 1496, 1666, 2145. 1493. The wife who renounces has the right to take back : 1. The real estate belonging to her, when it exists in kind, or the real estate which has been purchased as a reinvestment ; 2. The proceeds of the real estate belonging to her which has been conveyed and for which a reinvestment has not been made and accepted as above stated ; 3. AU the indemnities which may be due to her by the community. Civ. C. 1404, 1433, 1470. 1494. The wife who renounces is released from all con- tribution to the debts of the community, as well with respect to the husband as with respeet to the creditors. However, she remains liable towards the creditors when she has bound herself jointly with her husband or when the debt which has become a community debt originally arose through her ; all of which shall be subject to her remedy against the husband or his heirs. Civ. C. 1431, 1486. 1495. She can maintain all actions and assert her rights to take back, as has been above set forth, as well against OF MARRIAGE CONTRACTS, ETC. 343 the community property as against the individual pro- perty of the husband. Her heirs can do the same, with the exception of what relates to the taking of linen and clothes and to the board and lodging during the time allowed to make the inventory and for deliberation, which rights are purely personal to the surviving wife. Civ. C. 1054, 1465, 1491, 1492, 1514. Provision : — Relating to Legal Community when either the Husband or Wife, or both, have children of previous marriages. 1496. Everything that has been hereabove stated shall be followed, even when either the husband or wife, or both of them, have children of previous marriages. If, however, the merger of the personal property and of the debts has occasioned an advantage for the benefit of the husband or wife greater than what is allowed by art. 1098 of the Title Of Donations Inter Vivos and of Wills, the children of the first marriage shall be entitled against such husband or wife to an action for reduction. Civ. 0. 1098, 1527. Second Part. of (x)nventional community and of agreements which may modify or even make away with legal community. 1497. The husband and wife may modify legal com- munity by all sorts of agreements not forbidden by articles 1387, 1388, 1389 and 1390. The principal changes are those which take place by making stipulations in one of the following manners, viz. : 1. That the community shall only apply to acquests ; 344 OF MAEEIAGE CONTEACTS, ETC. 2. That the present or future personal property shall not fall into the community or shall only fall into ip in part; 3. That aU or part of the present or future real estate shall be included by way of equitable conversion ; 4. That the husband and wife shall pay individually the debts which they had previously to the marriage ; 5. That in case of renunciation, the wife shall be able to take back the property she has contributed, free of all charges ; 6. That the survivor shall have a preciput ; 7. That the husband or wife shall have unequal shares ; 8. That there shall exist between them a universal community. Civ. C. 1498, 1500, 1505, 1510, 1514, 1515, 1520, 1526, 1527 et s. ^1.0/ Community reduced to Acquests. 1498. When the husband and wife stipulate that there shall be only a community of acquests between them they are supposed to exclude from the community the present and future debts of each of them and their respective present and future personal property. In such case, and after the husband and wife have each taken back the property contributed by them, of which due proof shall be made, the division is reduced to the acquests made together or separately during the marriage by the husband and wife and resulting as well from the common work as from the savings realized upon the revenue and income of the property of the husband and wife. Civ. C. 1401, 1434, 1435, 1470, 1497. 1499. If the personal property existing at the time of the marriage or which has come to them since then has not been described in an inventory or statement in due form it is supposed to be an acquest. Civ. C. 1402, 1504. OF MARRIAGE CONTRACTS, ETC. 345 ^2. Of the provision excluding Personal Property, wholly or in part, from the Community. 1500. The husband and wife may exclude all their present or future personal property from the community. When they stipulate that they shall reciprocally include it in the community to the extent of a fixed sum or value, they are supposed by that fact alone to hare reserved the balance. Civ. C. 1428, 1603 et s. 1501. Such a provision makes the husband or wife liable to the community for the sum which he or she has promised to contribute and compels him or her to prove that such contribution has been made. Civ. C. 1845. 1502. The contribution is sufficiently proved as to the husband by the declaration inserted in the marriage con- tract that his personal property is of a stated value. It is sufficiently proved as to the wife by the receipt given by the husband to her or to those who have endowed her. 1503. The husband and wife each have the right to take back and deduct, at the time of the dissolution of the community, the amount of the personal property which he or she brought at the time of the marriage or of the property which has come to him or her since then over his or her contribution to the community. Civ. C. 1470, 1531, 1551. 1504. The personal property which comes to either the husband or wife during the marriage must be evidenced by an inventory. In the absence of an inventory of the personal property which has come to the husband or of a title sufficient to show its nature and value after the liabilities have been 346 OF MARRIAGE CONTRACTS, ETC, taken into account, the husband cannot enforce his right to take back such personal property. If the absence of an inventory bears upon personal pro- perty belonging to the wife, she or her heirs are entitled to prove the value of such personal property, either by writings or by witnesses or by common repute. Civ. C. 1415. §3.0/' the Clause of Equitable Conversion. 1505. "When the husband and wife or one of them has included in the community all or part of their present or future real estate, this clause is called equitable conver- sion. Civ. C. 1402, 1498, 1499, 1506, 1507. 1506. Equitable conversion can be limited or unHmited. It is limited when the husband or wife has declared an intention to equitably convert and include in the com- munity some real estate, wholly or to the extent of a certain sum. It is unlimited when the husband or wife has simply declared that he or she wanted to include his or her real estate in the community to the extent of a certain sum. 1507. The effect of a limited equitable conversion is to make the real estate to which it applies community property in the same manner as personal property. When some real estate or the whole real estate of the wife is equitably converted, the husband can dispose of it in the same way as the other effects of the community and can convey the whole of it. If the real estate is only equitably converted for a certain sum, the husband cannot convey it without the wife's consent ; but he can mortgage it without her consent to the extent only of the portion equitably converted. Civ. C. 1509, 1511, 2124. 1508. An unlimited equitable conversion does not make OF MAERIAGE CONTEACTS, ETC, 347 the community the owner of the real estate to which it applies : its effect is limited to compelling the husband or wife who has consented to it to include in the assets at the time of the dissolution of the community some of the real estate to the extent of the sum promised by him or her. The husband cannot, as in the foregoing article, convey the whole or part of the real estate to which the unlimited equitable conversion applies without the consent of his wife ; but he can mortgage it to the extent of such equit- able conversion. Civ. C. 1421, 2124. 1509. The husband or wife who has equitably converted an inheritance has at the time of the division the right to retain it by deducting from his or her share the value which it then has ; his or her heirs have the same right. Civ. C. 1474. § 4. 0/" the Clause of Separation of Debts. 1510. The clause by which the husband and wife agree that they will pay separately their personal debts binds them upon the dissolution of the community to respectively make good to each other the debts which are proved to have been paid by the community for account of the one who owed them. This obligation exists in the same manner whether an inventory has been made or not ; but if the personal pro- perty brought by the husband and wife is not shown by an inventory or an official statement made previously to the marriage, the creditors of one or the other may proceed to obtain payment against all the personal property not in- ventoried, as well as against all other property of the community, without regard to distinctions which might be set up. The creditors have the same right against the personal property which has come to the husband and wife during 348 OF MAREIAGE CONTRACTS, ETC, the community if it has not been likewise described in an inventory or official statement. Civ. C. 1437, 1478, 1482. 1511. When the husband and wife bring to the com- munity a certain sum or a specific thing, such contribution carries with it a tacit agreement that it is not encumbered by any debts made previously to the marriage; and the husband or wife who is indebted shall make good to the other all the debts which lessen the value of the contribu- tion promised. Civ. C. 1478. 1512. The provision of separation of debts does not prevent the community from being charged with the in- terest and arrears which have accrued since the marriage- Civ. C. 1439—2 and 3. 1513. When the community is sued for the debts of the husband or wife and it has been declared in the marriage contract that he or she was free and exempt from all debts previously to the marriage, the other is entitled to an in- demnity, which is taken either from the share in the com- munity of the one who is so indebted or from his or her individual property ; and in case of insuf&oiency, such indemnity can be claimed by way of guarantee from the father, the mother, the ascendant or the guardian who has declared that such husband or wife was free from debt. This guarantee may even be enforced by the husband during the community if the debt is due by the wife; subject in such case to the repayment due by the wife or her heirs to the guarantors after the dissolution of the com- munity. Civ. C. 1410, 1440, 1478. % 5. Of the Right granted to the Wife to take hack her Contribution Free and Net. 1514. The wife may stipulate that in case of renunciation of the community she can take back all or part of what she OF MARRIAGE CONTRACTS, ETC. 349 has contributed, either at the time of the marriage or since ; but this stipulation cannot extend beyond, the things which she has positively specified, nor apply to persons other than those mentioned. For instance, the right to take back the personal pro- perty which the wife brought upon the marriage does not extend to the property which has come to her during the marriage. Likewise, the right granted to the wife does not extend to the children, and the right granted to the wife and the children does not extend to the ascendants or collateral heirs. In all cases contributions can only be taken back after the personal debts of the wife which the community might have paid have been deducted. Civ. C. 1525. § 6. 0/" Conventional Preciput. 1515. The clause by which the surviving husband or wife is authorised to take, before any division, a certain sum or a certain quantity of movable effects in kind only gives the surviving wife the right to take the property when she accepts the community, unless the marriage contract has reserved her this right, even upbn renouncing it. Outside of the case of this exception, the preciput only takes effect against the assets to be divided and not against the individual property of the predeceased husband or wife. Civ. C. 1091, 1453, 1519. 1516. Preciput is not looked upon as an advantage sub- ject to the formalities of donations, but as a marriage agree- ment. Civ. C. 1091, 1098, 1527. 1517. Preciput takes effect upon natural or civil death (s). («) Civil death was abolished by the law of 31st May, 1854. 350 OF MARRIAGE CONTRACTS, ETC. 1518. When the dissolution of the community takes place by divorce or Reparation from bed and board there is no occasion for delivery of the preciput at that time ; but the husband or wife who has obtained either the divorce or the separation from bed and board retains his or her right to the preciput in case of survivorship. If it is the wife, the sum or the thing which forms the preciput always remains with the husband provisionally, but he is obliged to give security. Civ. C. 311, 1452. 1519 . Tne creditors of the community always have the right to cause the things forming part of the preciput to be sold, subject to the remedies of the husband or wife in accordance with article 1515. Civ. C. 1416. § 7. Of the Clauses hy which unequal shares of the Commtmity are attributed to the Husband and Wife. 1550. The husband and wife may derogate from the equal division established by law, either by giving to the survivor or his or her heirs a share less than one-half oi the community, or by giving to such survivor a fixed sum for all community rights, or by stipulating tbat in certain cases the whole community shall belong to the surviving husband or wife or to one of them only. Civ. C. 1522, 1525. 1551. When it has been agreed that the husband or wife or his or her heirs shall only have a certain part of the community, such as a third or a fourth, the husband or wife so reduced or his or her heirs shall only be responsible for the debts of the community in proportion to the share of the assets which they take. The agreement is void if it compels the husband or wife so reduced or his or her heirs to bear a larger portion or if OF MARRIAGE CONTRACTS, ETC. 351 it exempts them from bearing a portion of the debts equal to what they take of the assets. Civ. C. 1172, 1855. 1522. When it is agreed that the husband or wife or their heirs shall only be entitled to claim a certain sum for all his or her rights in the community, the clause is a bargain which compels the other or his or her heirs to pay the sum agreed upon, whether the community is good or bad, or sufficient or not, to pay the amount. Civ. C. 1467. 1523. If the clause only establishes the bargain with respect to the heirs of the husband or wife, he or she, in case of survivorship, is entitled to one-half upon the legal division. Civ. C. 1467 et s. 1524. The husband or his heirs, when they keep all the community property by virtue of the provision contained in article 1520, are obliged to pay all the community debts. In no case shall the creditors have any claim against the wife or her heirs. If the surviving wife is the one who, in consideration of a stipulated sum, has the right to keep all the community property from the heirs of the husband, she may, at her choice, either pay them this sum and remain liable for all the debts, or renounce the community and abandon to the husband's heirs all the property and liabilities. Civ. C. 1492 et s. 1525. The husband and wife have the right to agree that all the community property shall belong to the sur- vivor or to one of them only, but the heirs of the other shall then take back the contributions or the capital which have fallen into the community through the person from whom they take. Such an agreement is not considered a liberality subject 352 OF MARRIAGE CONTRACTS, ETC. to the rules relating to donations, either as to the subject matter or as to forms, but simply as an agreement in con- nection with the marriage and between partners. Civ. C. 931, 1094, 1098, 1498, 1499, 1507, 1520, 1527. § 8. Of Community under Universal Title. 1526. The husband and wife may, by their marriage contract, institute a universal community of their present and future personal property and real estate, or of all their present property only, or of all their future property only. Provisions applying to the Eight Foregoing Sections- 1537. "What is contained in the eight foregoing sections does not limit to the exact provisions thereof the conditions which may govern a conventional community. The husband and wife may make any other conditions, as is said in article 1387, subject, however, to the restrictions contained in articles 1388, 1389 and 1390. Nevertheless, in case there should be children of a pre- vious marriage, any agreement intended by its effects to give to the husband or wife more than the share allowed by article 1098 of the Title Of Donations Inter Vivos and of Wills shall be void with respect to everything exceeding such portion ; but the mere profits resulting from common work and the savings made from the respective incomes, although unequal, of the husband and wife, are not con- sidered as a HberaHty made to the detriment of the children of the first marriage. Civ. C. 1098. 1528. Conventional community is governed by the rules of legal community in all cases excepting when modifica- tions have been implicitly or explicitly made by contract. Civ. C. 1497. OF MARRIAGE CONTRACTS, ETC. 353 § 9. 0/" Conditions excluding Community/. 1529. When, without submitting to the dotal system, the husband and wife declare that they marry without com- munity, or when they are separated as to property, the effects of such an agreement shall be regulated as follows. Civ. C. 1387, 1391 et s. Sub- sect. 1. 0/ the Clause providing that the Sushand or Wife marry without Community. 1530. The clause providing that the husband and wife marry without community does not give the wife the right to manage her property nor to collect the income thereof : such income is supposed to go to the husband to settle the household expenses. Civ. C. 203, 214, 1401, 1421, 1540, 1549, 1575. 1531. The husband retains the management of the per- sonal property and real estate of the wife, and in conse- quence, the right to collect aU the personal property which she brings as dowry or which comes to her during the marriage, subject to the restitution which he must make thereof after the dissolution of the marriage or after the separation of property which may be ordered by the Courts. Civ. C. 1421. 1532. If, in the personal property brought as dowry by the wife or which comes to her during the marriage, there are things which cannot be used without beiag consumed, a statement and appraisement shall be added to the mar- riage contract or an inventory shall be made at the time they become due, and the husband must return their value according to the appraisement. Civ. C. 587. 1533. The husband is liable for aU charges resulting from usufruct. Civ. C. 600 et s., 1562, 1580. C.N. A A 354 OF MARRIAGE CONTRACTS, ETC. 1534. The provision which is the subject of this sub- section does not prevent a stipulation being made to the effect that the wife may collect every year, upon her own receipt, certain portions of the income for her maintenance and personal wants. Civ. C. 1549. 1535. The real estate set aside as dowry in the case mentioned in this sub-section shall not be inalienable. Nevertheless, it cannot be conveyed without the husband's consent, and in case of his refusal, without permission of the Court. Civ. C. 217 et s., 818, 1554 et s. Sub-sect. 2. Of the Clause of Separation of Property. 1536. "When the husband and wife have stipulated in their marriage contract that there would be a separation of property between them, the wife retains the entire manage- ment of her personal property and real estate and the free enjoyment of her income. Civ. C. 1449, 1576. 1537. The husband and wife each contribute to the household expenses according to the conditions contained in their contract ; and if there are none in relation thereto, the wife contributes to those expenses to the extent of one- third of her income. Civ. C. 203 et s., 1448, 1575. 1538. The wife cannot in any case, nor in consequence of any agreement, convey her real estate without the express consent of her husband, or in case of his refusal, without being authorized by the Court. Any general consent given to the wife to convey her real estate, either by marriage contract or since then, is void. Civ. C. 217, 1576. 1539. When a wife separated as to property has left the enjoyment of her property to her husband, the latter is only OF MARRIAGE CONTRACTS, ETC. 355 bound, either in case of a demand made upon him on the part of his wife, or at the dissolution of the marriage, to produce the income which exists, and he is not accountable for the income which has already been spent. Civ. C. 1578. Chap. III. Of Dotal System. 1540. Dowry under this system, as well as under the one provided by Chapter II., is the property which the wife brings to the husband to bear the household expenses. 1541. Everything the wife sets apart, or which is given to her by marriage contract, is dotal unless there is an agreement to the contrary. Civ. C. 1392, 1549, 1554. % 1. Of Settlement of Dowry. 1542. A settlement of dowry may include all the present and future property of the wife, or all her present property only, or a part of her present and future property, or even an individual thing. A settlement in general terms of all the wife's property does not include future property. Civ. C. 1165, 1391, 1392, 1395, 1549, 1553, 1554, 1574 et s., 1581. 1543. A settlement of dowry cannot be made, nor can the dowry be increased, during the marriage. Civ. C. 1395, 1574. 1544. If the father and mother make jointly a settle- ment of dowry without specifying each one's share, such A A 2 356 OF MARRIAGE CONTRACTS, ETC. settlement stall be considered as having been made by equal portions. If the settlement of the dowry has been made by the father alone, out of the rights of the father and mother, the mother is not liable, even if she was present at the execution of the contract, and the father shall be responsible for the entire dowry. Civ. C. 1134, 1438. 1545. If the surviving father or mother has made a settlement of dowry out of the property of such father and mother without specifying the portions, the dowry shall first be taken out of the rights of the future wife to the property of the deceased father or mother, and the balance out of the property of the one of them who has made the settlement. Civ. C. 1438. 1546. Although the daughter endowed by her father and mother has property of her own of which they have the enjoyment, the dowry shall be taken out of their property, unless there is an agreement to the contrary. Civ. C. 384. 1547. Those who make a settlement of dowry are bound to warrant the property given. Civ. C. 1440, 1625. 1548. The interest on the dowry begins to run by right against those who have promised it, from the day of the marriage, even if time has been allowed for payment, unless there is an agreement to the contrary. Civ. C. 1440, 1570. § 2. Of the Bights of the Eushand to tlie Dotal Property and of Inalienability of Dowry. 1549. The husband has the sole management of the dotal property during the marriage. He alone has the right to proceed against debtors and OF MAJRKIAGE CONTRACTS, ETC. 357 holders of such property, to collect the revenue and interest, and to ohtain the repayment of the capital. However, it may be agreed in the marriage contract that the wife shall collect annually, upon her own receipt, for her maintenance and her personal wants, a part of her income. Civ. C. 818, 1421, 1428, 1531, 1534, 1541, 1554, 1574, 2121, 2135 et s. 1550. The husband is not bound to give security upon payment of the dowry, unless he has been compelled so to do in the marriage contract. Civ. C. 600, 1662. 1551. If the dowry or a part of it consists in personal articles estimated in the marriage contract, without a de- claration that the appraisal does not constitute a sale, the husband becomes the owner thereof and only owes the value given to the personal property. Civ. C. 1564. 1553. The appraisal made of real estate forming part of the dowry does not transfer the ownership to the hus- band unless there is an express declaration to that effect. Civ. C. 1551. 1553. The real estate purchased with dotal funds does not become dotal property unless the condition of invest- ment has been inserted in the marriage contract. The same rule applies to real estate given in payment of a dowry consisting in cash. Civ. C. 1435, 1559, 1595-3. 1554. Real estate given as dowry cannot be conveyed or mortgaged during the marriage, either by the husband or wife, or by both of them jointly, with the following excep- tions. Civ. C. 873, 1075, 1090, 1251, 1338, 1382, 1392, 1426, 1449, 1549, 1556, 1558, 1560, 1563, 1571, 2045, 2157, 2195. 1565. The wife may, with the consent of her husband, 358 OF MARRIAGE CONTRACTS, ETC. or in case of his refusal with the authority of the Court, give her dotal property for the estahlishment of children whom she might have of a previous marriage ; but if she is only authorized by the Court, she must reserve the enjoyment of such property to her husband. Civ. C. 217, 218, 1427. 1556. She may also, with the consent of her husband, give her dotal property for the establishment of the children of the marriage. Civ. C. 1075, 1123, 1124, 1554, 1555, 1563. 1557. Dotal real estate may be conveyed when the marriage contract allows the conveyance thereof. Civ. C. 818, 883, 1309, 1382, 1387, 1391, 1398, 1435, 1541, 1549, 1554, 1558, 1560, 1988. 1558. Dotal real estate may also be conveyed by order of the Court and at auction after three notices : — To release the husband or wife from prison ; To furnish support to the family in the cases provided by articles 203, 205 and 206 of the Title Of Marriage; To pay the wife's debts or those of the persons who have given the dowry, when such debts have a positive date which is previous to the marriage contract ; To make heavy repairs which are indispensable for the preservation of the dotal real estate ; Finally, when such real estate is undivided, owned to- gether with third persons, and it is apparent that it cannot be divided. In all these cases any surplus over the selling price above the acknowledged wants shall remain dotal property and shall be invested as such for the benefit of the wife. Civ. C. 606, 827, 1317, 1427, 1557, 1559, 1686, 1912. 1559. Dotal real estate can be exchanged, but with the wife's consent, against other real estate of the same value, OF MARRIAftE CONTKACTS, ETC. 359 to the extent of four-fifths at least, by establishing the ad- vantage of the exchange and obtaining the authority of the Court and according to an estimate made by experts ap- pointed of its own accord by the Tribunal. In such case the real estate received in exchange shall be dotal : the surplus above the price, if there is any, shall also be dotal and shall be invested as such for the benefit of the wife. Civ. C. 1396, 1554, 1558, 1702. 1560. If, outside of the exceptional cases which have just been explained, the wife or husband, or both of them jointly, should convey the dotal property, the wife or her heirs may have the conveyance set aside after the dissolution of the marriage, and prescription cannot be set up against them during its continug,nce : the wife shall have the same right after a separation of property. The husband may himself have the conveyance set aside during the marriage by remaining, nevertheless, liable for damages to the purchaser if he has not declared in the con- tract that the property sold was dotal. Civ. C. 1125, 1149, 1304, 1382, 1554, 1557, 1558, 1630, 1634, 2012, 2121, 2135, 2195, 2256. 1561. Prescription does not run during the marriage against dotal real estate which has not been declared to be alienable in the marriage contract, unless the prescription has commenced to run previously thereto. Nevertheless, prescription can run after a separation of property, whatever may be the time when the prescription has commenced. Civ. C. 227, 306 et s., 682, 683, 1560, 2255, 2256. 1562. A husband, with respect to dotal property, is sub- ject to all the obligations of a usufructuary. He is liable for all prescriptions which have taken effect and for any waste resulting from his negligence. Civ. C. 600, 1533, 1580, 2121, 2135. 360 OF MAEEIAGE CONTRACTS, ETC. 1563. If the dowry is in danger, the wife can apply for a separation of property, as is stated in articles 1443 et s. § 3. 0/' Restitution of Boiory. 1564. If the dowry consists in real estate. Or in personal property not appraised in the marriage contract or appraised with a declaration that the appraise- ment does not take away the ownership from the wife, The husband or his heirs may be compelled to return it immediately after the dissolution of the marriage. Civ. C. 1551, 1552. 1565. If it consists in a sum of money, Or in personal property appraised iu the marriage con- tract without a declaration that the appraisement does not confer ownership upon the husband. The restitution can only be claimed one year after the dissolution. Civ. C. 1551, 1552. 1566. If the personal property of which the wife retains the ownership has been damaged by use and not owing to the fault of the husband, he shall only be bound to return such of the property as remains and in the condition in which it is. Nevei'theless, the wife may, in all cases, take back her linen and clothes for her present use, but the value thereof shall be deducted if such linen and clothes had been appraised when originally given. Civ. C. 589, 1492. 1567. If the dowry comprises bonds or settlements of annuities which have been lost or suffered reductions which cannot be attributed to the husband's negligence, he shall not be liable therefor and he shall be released upon turning over the contracts. Civ. C. 588, 1911 et s. OF MARRIAGE CONTEACTS, ETC. 361 1568. If the dowry comprises the settlement of a usu- fruct, the husband or his heirs, upon the dissolution of the marriage, are only obliged to return the right to the usu- fruct and not the income accrued during the marriage. Civ. C. 588. 1569. If the marriage has lasted ten years since the time fixed for the payment of the dowry has expired, the wife or her heirs may claim such dowry from the husband after the dissolution of the marriage without being bound to prove that he has received it, unless he shows that he has taken steps without success to obtain the payment thereof. Civ. C. 1502. 1570. If the marriage is dissolved by the death of the wife, the interest and revenue of the dowry which is to be returned begin to run by right for the benefit of her heirs from the day of the dissolution. If it is by the death of the husband, the wife has the choice between claiming the interest of the dowry during the year of her mourning or claiming alimony during such time, at the expense of the husband's succession ; but in both cases lodgings and the wearing apparel of her mourning shaU be supplied to her by the succession during that year without any deduction from the interest which she is entitled to. Civ. C. 1465, 1481, 2135. 1571. At the dissolution of the marriage the revenue of the dotal real estate is divided between the husband and the wife or 'their heirs, in proportion to the part of the last year which has run. The year commences from the day upon which the marriage has been celebrated. Civ. C. 585, 586. 1572. The wife and her heirs have no privilege over previous mortgage creditors for the restitution of the dowry. Civ. C. 2121, 2135. 362 OF MARRIAGE CONTRACTS, ETC. 1573. If the husband was already insolvent and had no trade or profession when the father settled the dowry upon his daughter, the latter shall only be bound to return to her father's succession the action which she has against the succession of her husband for repayment. But if the husband has only become insolvent since the marriage, Or if he had a trade or profession which took the place of capital. The loss of the dowry falls solely upon the wife. Civ. C. 843 et s. § 4. 0/" Paraphernal Property. 1574. All the property of the wife which has not been included in the settlement of dowry is paraphernal. Civ. C; 1536, 1540. 1575. If all the wife's property is paraphernal, and if there are no provisions in the contract to make her contri- bute to a part of the household expenses, the wife contributes thereto to the extent of one-third of her income. Civ. C. 203 et s., 1537. 1576. The wife has the management and enjoyment of her paraphernal property. But she cannot convey it or appear in court in connection with the same without the consent of her husband, or upon his refusal, without the authorization of the Court. Civ. C. 215 et s., 1581. 1577. If the wife gives her power of attorney to the husband to manage her paraphernal property with the obligation to account to her for its revenue, he shall be liable to her in the same manner as any attorney-in-fact. 1578. If the husband has had the enjoyment of the OF MARRIAGE CONTRACTS, ETC. 363 paraphernal property of his wife without a power of attorney, and nevertheless without opposition on her part, he is only bound, upon the dissolution of the marriage, or upon the first request made by the wife, to produce the existing revenues, and he is not accountable for the revenues which have been consumed up to that time. Civ. C. 1539. 1579. If the husband has had the enjoyment of the paraphernal property, notwithstanding the manifest op- position of the wife, he is answerable to her for all the revenues, existing as well as consumed. Civ. C. 527. 1580. The husband who has the enjoyment of the para- phernal property is subject to all the obligations of a usufructuary. Civ. C. 600, 1533, 1562. Special Provision. 1581. When submitting to the dotal system the husband and wife may, nevertheless, agree that there shall be a partnership of acquests, and the effects of such partnership shall be regulated as is stated in articles 1498 and 1499. ( 364 ) Title Sixth. OP SALES. (Passed 6th March, 1804 ; pronmlgated 16th of same month.) Chap. I. Or THE Natuke and Form of Sales. 1583. A sale is a contract by wHcli one person binds himself to deliver a thing and another to pay for it. A sale can be made by a pubb'c instrument or by an instrument under private signature. Civ. C. 1102 et s., 1317, 1322. 1583. A sale becomes complete between the parties, and the ownership belongs by right to the purchaser, against the vendor, so soon as the thing and the price have been agreed upon, although the thing has not yet been delivered or the price paid. Civ. C. 711, 1138, 1141, 1217, 1218, 1591, 1606, 1614, 2182. 1584. A sale can be made absolutely or under condition precedent or under condition subsequent. It can also apply to two or more optional things. In all cases its effect is regulated by the general principles relating to contracts. Civ. C. 1168, 1181, 1185, 1189. 1585. When goods are not sold in a lump but by weight, number, or measure, the sale is not complete in this respect, that the goods sold remain at the risk of the vendor until they have been weighed, counted, or measured ; but the OF SALES. 365 purchaser may claim the delivery thereof, or damages, if necessary, in case the contract is not carried out. Civ. C. 520, 521, 1142, 1182, 1302, 1583, 1604, 1606. 1586. If, on the contrary, the goods have been sold in a lump, the sale is complete although the goods have not yet been weighed, counted, or measured. 1587. As regards wines, oil and other goods which it is customary to taste before buying, there is no sale so long as the purchaser has not tasted or accepted them. 1588. A sale made upon trial is always supposed to be made under condition precedent. Civ. C. 1181 et s., 1584. 1589. A promise of sale is equivalent to a sale in case of mutual consent of both parties as to the thing and the price. Civ. C. 1179, 1583, 1592. 1590. If, upon a promise of sale, earnest money has been given, each of the contracting parties is at liberty to with- draw, The one who has given the earnest money, by forfeitiug it. And the one who has received it, by returning twice the amount. Civ. C. 1715. 1591. The consideration of the sale shaU be fixed and designated by the parties. 1593. It can, nevertheless, be left to the arbitration of a third party. If said party is not willing to or cannot make an estimate, there is no sale. Civ. C. 1854. 1593. The expenses of the contract and other charges relating to the sale shall be paid by the purchaser. Civ. C. 1248, 1382, 1999, 2062. 366 OF SALES. Chap. II. Or THOSE "WHO CAN BuY OE SeLL. 1594. AU those who are not prohibited by law from so doing can buy or sell. Civ. C. 128, 450, 537, 1123, 1507, 1554, 1576, 1596 et s., 1860. 1595. A contract of sale can only take place between husband and wife in the three foRowing cases : — 1. In case either the husband or the wife, when judicially separated as to property, assigns to the other some property in payment of his or her rights ; 2. When the assignment made by the husband to the wife, even when not separated as to property, has a legitimate cause, such as the reinvestment of proceeds of her real estate which has been conveyed, or of funds belonging to her if such real estate or funds do not form part of the community ; 3. "When the wife assigns property to her husband in payment of an amount which she has promised him as dowry, and when there is no community. Subject in these three cases to the rights of the heirs of the contracting parties if there should be any indirect advantage. Civ. C. 1401, 1421, 1443 et s., 1540. 1596. The following persons cannot, either themselves or through intermediaries, become purchasers at public sale, under penalty of avoidance of the sale : Guardians, with respect to the property of those under their guardianship ; Attorneys-in-fact, with respect to property which they have charge of selling ; Administrators, with respect to property belonging to districts or pubHo establishments intrusted to their care ; Public officers, with respect to national property of which OF SALES. 367 the sale is conducted througli their instrumentality. Civ. C. 450, 911, 1099, 1100, 1991. 1597. Judges, their assistants, magistrates holding the office of puhHc prosecutor, clerks of the court, sheriffs, solicitors, counsellors and notaries, cannot purchase the actions, contested rights and causes of action which come under the jurisdiction of the Tribunal in the District of which they carry on their profession, under penalty of avoidance of the sale and of damages. Civ. C. 1699. Chap. III. Of Things which can be Sold. 1598. Everything which is in trade {t) can be sold when special laws do not prohibit the sale thereof. Civ. C. 538, 1128, 1600, 2226. 1599. The sale of a thing belonging to, another person is void : it can give rise to damages when the purchaser is not aware that the thing belonged to another person. Civ. C. 136, 137, 843, 1021, 1141, 1165, 1409, 1626, 1659, 1696, 1707, 2265, 2280. 1600. The succession of a person who is alive cannot be sold, even with his consent. Civ. C. 791, 1130, 1304. 1601. If, at the time of the sale, the thing sold has been totally destroyed, the sale shall be void. If only a part of the thing has been destroyed, the If) These words must be taken in a broad sense, and apply to property- belonging to private individuals in contra-distiuction to public property. 368 OF SALES. purchaser has the choice between either giving up the purchase or claiming the part saved by having the price thereof fixed by appraisement. Civ. C. 1193, 1196, 1301. Chap. IV. Of the Vendor's Obligations. § 1. General Provisions. 1602. The vendor is obliged to explain distinctly what he binds himself to. Any obscure or ambiguous contract shall be interpreted against the vendor. Civ. C. 1156, 1162. 1603. There are two principal obligations, one to make delivery, and the other to warrant the thing sold. Civ. C. 1604, 1625. § 2. 0/" Delivery. 1604. Delivery is the transfer of the thing sold into the power and possession of the purchaser. Civ. C. 1136. 1605. The obligation to dehver real estate is fulfilled on the part of the vendor when he has handed over the keys, in case of a building, or when he has handed over the title deeds. 1606. The delivery of personal property takes place. Either by actual transfer, Or by handing over the keys of the buildings which contain it, Or even by the mere consent of the parties, if the transfer OP SALES. 369 cannot take place at the time of the sale, or if the pur'chaser already had the property in his possession in another manner. Civ. C. 1138, 1141, 1605. 1607. The transfer of incorporeal rights is made either hy handing over the title deeds or by the use which the purchaser has made of such rights with the consent of the vendor. Civ. C. 1689 et s., 2075. 1608. The expenses of delivery are paid by the vendor, and those of removal by the purchaser, unless there is a stipulation to the contrary. Civ. 0. 1248. 1609. Delivery must be made at the place where the thing sold was at the time of the sale, unless a dififerent agreement has been made. Civ. C. 1247, 1264. 1610. If the vendor fails to make delivery at the time agreed upon between the parties the purchaser may at his choice apply for the cancellation of the sale or ask to be given possession if the delay has only been occasioned by an act of the vendor. Civ. C. 1139, 1184, 1611, 1614, 1615, 1654. 1611. In all cases the vendor shall be ordered to pay damages if any detriment has resulted to the purchaser from the failure to make delivery at the time agreed upon. Civ. C. 1146. 1612. A vendor is not obliged to deKver the thing if the purchaser does not pay the price thereof, unless the vendor has given him time for payment. Civ. C. 1650 et s. 1613. Neither shall he be obliged to make delivery, even if he has allowed him time to pay, if, since the sale, the purchaser has become a bankrupt or is in a state of C.N. B B 370 OF SALES. insolvency so that the vendor finds himself in imminent danger of losing the purchase money ; imless the purchaser furnishes security for payment at the time agreed upon. Civ. C. 1188, 1612, 1657. 1614. The thing must he delivered in the condition it was in at the time of the sale. From that day, all the revenues helong to the purchaser. Civ. C. 551, 1615, 1682. 1615. The ohligation to deliver the thing includes its accessories and everything that was intended for its per- petual use. Civ. C. 1625, 1692, 2204. 1616. A vendor is obliged to deliver the quantity such as it is specified in the contract, subject to the modifica- tions hereinafter mentioned. Civ. C. 1765. 1617. If the sale of real estate has been made and the dimensions have been specified at the rate of so much, according to the measures, the vendor is obliged to deliver to the purchaser the quantity stated in the contract, if the latter requires it. If this cannot be done or if the buyer does not require it, the vendor is obliged to accept a proportionate reduction in the price. Civ. C. 1627, 1636, 1765. 1618. If, on the contrary, in the case mentioned in the foregoing article, the dimensions are larger than those expressed in the contract, the purchaser at his choice may either pay the surplus of the price or withdraw from the contract if the surplus exceeds by one-twentieth the dimensions specified. Civ. C. 1681 et s. 1619. In aU other cases. Whether the sale made is of a specified and limited corpus, OP SALES. 371 Whether it applies to distinct and separate pieces of property, Whether it commences by the measure or designation of the property sold followed by the measure. The designation of this measure does not entitle the vendor to any increase in the price for what exceeds the measure, nor the purchaser to any reduction in the price for what is below it, unless the difference between the actual measure and the one expressed in the contract should be of one-twentieth, more or less, with respect to the value of all the property sold, provided there is no stipulation to the contrary. 1630. In case it should be necessary in accordance with the foregoing article to increase the price on account of what exceeds the measure, the purchaser may at his choice either withdraw from the contract or pay the surplus of the price, with interest, if he has kept the real estate. Civ. C. 1681. 1621. In aU cases ia which the purchaser has the right to withdraw from the contract, the vendor is obliged to return to him the expenses occasioned by the contract, besides the price, if he has received the same. Civ. C. 1630. 1622. The action for an increase in the price, on the part of the vendoi* and the action for a reduction in the price or for cancellation of the contract, on the part of the purchaser, must be brought within one year from the date of the contract, otherwise it is barred. Civ. C. 1617. 1623. If two pieces of property have been sold by the same contract and for one single and same price, the measure of each of them being specified, and one of such pieces of property should be of smaller and the other of B B 2 372 OF SALES. larger dimensions, proper compensation shall be established to the extent of the difference, and an action for an increase or reduction in the price only lies in accordance with the rules hereabove set forth. 1624. The question of ascertaining whether the loss or depreciation of the property sold before its delivery shall fall upon the vendor or the purchaser is to be decided according to the rules contained in the Title Of Contracts or Conventional Obligations in General. Civ. C. 1137, 1138 et s., 1182, 1234, 1302. § 3. 0/" Warrant]/. 1635. The warranty which the vendor owes to the pur- chaser has a double object : First, the peaceful possession of the property sold ; second, the hidden defects of this property or the defects rendering the sale void. Civ. C. 1599, 1603, 1610, 1641 et s. Sub-sect. 1. 0/ Warranty in case of Ejectment. 1636. Although no stipulation as to warranty has been made upon the sale of property, the vendor is in duty bound to warrant the purchaser against the ejectment which he is subjected to from the whole or part of the property sold or against the alleged charges upon such property which have not been declared at the time of the sale. Civ. C. 884, 1148, 1619, 1627, 1628, 1629, 1630, 1636, 1640, 1681, 1705, 2178, 2191. 1637. The parties may, by special agreement, add to this obligation, which exists by right, or reduce its effect : they may even agree that the vendor shall not be subject to any warranty. Civ. C. 1134, 1626, 1628, 1643. OF SALES. 373 1628. Even if it is stated that the vendor is not bound to any warranty, he nevertheless remains responsible for the warranty resulting from his personal act : any agreement to the contrary is void. Civ. C. 1626, 1629, 1693. 1629. Even in case of a stipulation of no warranty, the vendor is bound in case of ejectment to return the price, unless the purchaser knew of the danger of his being ejected or unless he had made the purchase at his risk and perH. Civ. C. 1626, 1628, 1638, 1642. 1630. "When a warranty has been promised or when no stipulation has been made with respect thereto, the pur- chaser, if he is ejected, has the right to claim from the vendor, 1. The return of the price, 2. The return of the revenues, when he is obliged to give them back to the owner who ejects him, 3. The expenses incurred in the action for warranty brought by the purchaser or those incurred by the original plaintiff, 4. Finally, the damages and interest and the expenses and proper costs of the contract. Civ. C. 1149, 1599, 1621, 1625, 1626, 1629, 1633, 1646, 1681, 2178. 1631. When, at the time of the ejectment, the property sold has decreased in value or has been considerably damaged, either owing to the negligence of the purchaser or by accidents resulting from superior force, the vendor nevertheless is bound to return the whole price. Civ. C. 1382, 2175. 1632. But if the purchaser Las reaped some benefit from the damage occasioned by him, the vendor has the right to retain out of the price a sum equal to such benefit. 1633. If the property sold has increased in value at the 374 OF SALES. time of the ejectment, even independently of what the purchaser may have done to it, the vendor is bound to pay him what it is worth above the price of the sale. Civ. C. 1637. 1634. A vendor is bound to reimburse the purchaser, or to cause him to be reimbursed by the person who ejects him, for all the useful repairs and improvements which he has made to the property. 1635. If a vendor has sold the property of another person in bad faith, he is bound to repay to the purchaser all the expenses, even for embellishment or pleasure, which the latter may have made in connection with the property. Civ. C. 549 et s., 1599, 2268. 1636. If the purchaser is only ejected from part of the property and such part is of so much importance in propor- tion to the whole that the purchaser would not have bought it without the part, from which he has been ejected, he may have the sale cancelled. 1637. If, in case of ejectment from part of the property sold, the sale is not cancelled, the value of the part from which the purchaser is ejected shall be reimbursed to him according to an appraisement made at the time of the eject- ment and not proportionately to the total price of the sale, whether the property sold has increased or decreased in value. Civ. C. 1617, 1633. 1638. If the estate sold is encumbered with servitudes which are not apparent, without any declaration to that effect having been made, and such servitudes are of so much importance that it is to be presumed that the pur- chaser would not have bought the property if he had been informed thereof, he may sue for the cancellation of the OP SALES. 375 contract, unless he prefers to be satisfied with an indemnity. Civ. C. 1626, 1642. 1639. The other questions which may be brought up, owing to the damages resulting to the purchaser from the failure to carry out the sale, must be decided according to the general rules contained in the Title Of Contracts or Conventional Obligations in General. Civ. C. 1136 et s., 1142 et s., 1146 et s., 1182, 1184, 1226 et s. 1640. A warranty on account of ejectment ceases when the purchaser has allowed a final judgment to be rendered against him or a judgment from which an appeal can no longer be taken without summoning the vendor, if the latter proves that sufficient defences existed to have the action dismissed. Civ. C. 1851. Sub-sect. 2. 0/ Warranty against the Defects of the Thing sold. 1641. A vendor is bound to warrant against the hidden defects of the thing sold which render it unfit for the use for which it was intended or which impair its use to such an extent that the purchaser would not have acquired it or would only have given a smaller price if he had known of them. Civ. C. 1602, 1625, 1636, 1638, 1642, 1643, 1644, 1674. 1642. A vendor is not responsible for the apparent defects as to which the purchaser has been able to satisfy himself. Civ. C. 1116, 1313, 1629, 1674. 1643. He is responsible for the hidden defects, even if he did not know of them, unless it has been stipulated in such case that he should not be bound to any warranty. Civ. C. 1627, 1629. 376 OF SALES. 1644. In the cases provided for in articles 1641 and 1643 the purchaser may at his choice, either give hack the thing and have the price returned to him or keep the thing and have such part of the price returned as shall be decided by- experts. Civ. C. 1617, 1634. 1645. If the vendor knew of the defects of the thing, he is bound not only to return the price 'which he has received, but he is also liable to the purchaser for all damages. Civ. C. 1149, 1630 et s. 1646. If the vendor did not know of the defects of the thing he shall only be bound to return the price and to reimburse to the purchaser the expenses occasioned by the sale. Civ. C. 1630, 1650. 1647. If the thing which had defects has ceased to exist owing to its bad condition, the loss falls upon the vendor, and he is bound towards the purchaser to return the price together with the other compensations mentioned in the two foregoing articles. But if the loss happens by accident, it falls upon the purchaser. Civ. C. 1641. 1648. The action resulting from defects which render the sale void must be brought by the purchaser within a short time, according to the nature of such defects and the customs of the place where the sale has been made. Civ. C. 1304. 1649. It cannot be brought in case of sales made by order of the Court. Civ. C. 1684. OF SALES. 377 Chap. V. Of the Purchasek's Obligations. 1650. The principal obligation of the purchaser is to pay the price upon the day and at the place fixed by the sale. Civ. C. 1239, 1653, 2102—4, 2103—1 et s., 2108. 1651. If nothing has been arranged in that respect at the time of the sale, the purchaser must make payment at the place and time the delivery is to be made. Civ. C. 1427. 1652. The purchaser owes interest on the purchase price up to the time of the payment of the capital in the three following cases : If it has been so agreed at the time of sale ; If the thing sold and delivered bears fruit or produces any other revenue ; If the purchaser has been summoned to pay. In the last case the interest only runs from the time of the summons {u). Civ. C. 1139, 1153, 1905, 2176. 1653. If the purchaser is disturbed or has a just cause for fearing that he will be disturbed by an action upon a mortgage or for recovery, he may suspend payment of the price until the vendor has caused the disturbance to cease, unless the latter prefers to give security or unless it has been stipulated that the purchaser wiU pay notwithstanding the disturbance. Civ. C. 1599, 2011. 1654. If the purchaser does not pay the price, the vendor may ask for the cancellation of the sale. Civ. C. (u) A summons heie means a legal demand made through a sheriff. 378 OF SALES. 883, 1183, 1184, 1223, 1670, 1674, 1978, 2102, 2125, 2146, 2279. 1655. The cancellation of a sale of real estate shall be forthwith ordered if the vendor is in danger of losing the property and the price. If this danger does not exist, the Judge may grant the purchaser more or less time, according to circumstances. When the time has passed and the purchaser has not paid, the cancellation of the sale shall be ordered. Civ. C. 1184, 1244. 1656. If it has been stipulated upon a sale of real estate that in default of payment of the price at the time agreed upon the sale shall be cancelled by right, the pur- chaser can nevertheless pay after the time has expired, so long as a demand has not been made upon him by way of a summons (x) ; but after this summons the Judge cannot grant him any more time. Civ. C. 1139, 1184, 1983. 1657. In case of sale of goods and personal effects the cancellation of the sale shall take place by right for the benefit of the vendor and without a summons (x) after the expiration of the time agreed upon for taking back the thing. Civ. C. 1585, 2102—4. (a) A summons here means a legal demand made through a sheriff. OP SALES. 379 Chap. VI. Of Avoidance and Rescission of Saies. 1658. Independently of the causes of avoidance or rescission above explained in this Title and of those which apply to all contracts, a contract of sale can be rescinded by making use of a power of redemption or on account of in- sufficiency of the price. Civ. C. 1108 et s., 1183 et s., 1304 et s., 1595 et s., l&lQet s., 1636, 1644 ets., 1654 ets., 1659 et s., 1674 et s. § 1. Of Might of Redemption. 1659. The right of redemption or repurchase is a cove- nant by which the vendor retains the power of taking back the thing sold by returning the purchase price and reim- bursing what is specified in article 1673. Civ. C. 1038, 1168, 1174, 1599, 1692, 1751. 1660. The right of redemption cannot be stipulated for a period exceeding five years. If it has been stipulated for a longer time it is reduced to that period. 1661. The time fixed is obligatory and cannot be extended by the Court. Civ. C. 1662. 1662. If the vendor has not brought his action for redemption within the time fixed the purchaser remains the irrevocable owner. Civ. C. 1673, 1751. 1663. The time runs against all persons, even against a minor, subject to the remedy against the proper person if there is occasion therefor. Civ. C. 2278. 380 OF SALES. 1664. The vendor who has an agreement containing the right of redemption may bring his action against a second purchaser, even if the power of redemption is not mentioned in the second contract. Civ. C. 1165. 1665. The purchaser of property subject to a power of redemption, may exercise all the rights of his vendor. He has the benefit of prescription as well against the real owner as against those who might claim to have rights to the thing sold or mortgages thereupon. Civ. C. 2225. 1666. He can set up the plea of seizure against the cre- ditors of the vendor. Civ. C. 2021 et s. 1667. If the purchaser of the undivided part of an estate subject to a power of redemption has bought the whole estate at a public sale which has been applied for against him, he may compel the vendor to take back the whole property if the latter wishes to make use of his power of redemption. Civ. C. 1686 et s. 1668. If several persons have sold jointly and by a single contract a joint estate, each one can only bring his action for redemption for the part which belonged to him. Civ. C. 1217. 1669. The same rule shall apply if the person who alone has sold an estate has left several heirs. Each of the co-heirs can only make use of the power of redemption for the part which he takes in the succession. Civ. C. 1220. 1670. But in the cases provided for in the foregoing articles a purchaser can exact that all the vendors or all the co-heirs be joined in the action so that they may agree among themselves upon the redemption of the whole estate ; OF SALES. 381 and if they do not agree his action shall be dismissed. Civ. C. 1225, 1685. 1671. If the sale of an estate belonging to several persons has not been made jointly and the whole estate has not been sold at the same time, and if each one has only sold his share thereof, they can bring their action for redemption separately for the part which belonged to them ; And the purchaser cannot compel the person who brings the action in this way to redeem the whole. 1672. If the purchaser has left several heirs the action for redemption can only be brought against each one of them for his share, provided it is still undivided or the property sold has already been divided between them. But if there has been a division of the estate and the property sold has fallen to the share of one of the heirs, the action for redemption may be brought against him for the whole. Civ. C. 873, 883 et s., 1220 et s. 1673. The vendor who makes use of a power of redemp- tion must reimburse not only the purchase price but also the expenses and proper charges of the sale, the necessary repairs and those which have increased the value of the property to the extent of such value. He can only enter into possession after having complied with all these require- ments. When the vendor regains his estate owing to the power of redemption he takes it free from all charges and mort- gages with which the purchaser may have encumbered it. He is bound to carry out the leases made without fraud by the purchaser. Civ. C. 1183, 1659, 2103, 2125, 2180, 2195. §2.0/ Rescission of Saks on Account of Lesion. 1674. If the vendor has suffered a loss of more than seven-twelfths of the price of a piece fo real estate, he has 382 OF SALES. the right to apply for the rescission of the sale, even if he has expressly renounced in the contract the right to ask for such rescission and has declared that he abandoned any increase in the value. Civ. C. 888, 1668, 1677, 1706, 1964, 1968, 1976. 1675. To ascertain if there is lesion of more than seven-twelfths, the real estate must be appraised according to its condition and value at the time of the sale. Civ. C. 890, 1589, 1674. 1676. An action can no longer be brought after the expiration of two years from the day of the sale. The time runs against married women, absentees, inter- dicted persons and minors taking the place of a person of full age who has been the vendor. The time also runs and is not suspended during the period stipulated for the power of redemption. 1677. Proof of lesion can only be allowed by judgment and only in case the facts alleged are sufficiently probable and serious to create a presumption of lesion. 1678. This proof can only be made by a report of three experts, who are obliged to draw up a single joint official report and to express a single opinion by a pluraHty of votes. 1679. If there are different opinions, the official report shall state the reasons given, but it shall not be allowed to make known what the opinion of each expert was. 1680. The three experts shall be appointed by the Court, unless the parties have agreed to name them all three jointly. 1681. In case the action for rescission succeeds, the pur- chaser has the choice either between returning the thing OF SALES. 383 and taking back the price wliieh he has paid, or keeping the property by paying the balance of the just price after deducting one-tenth of the total price. A third party in possession has the same right, subject to his claim for warranty against the vendor. Giv. C. 891, 1618, 1630. 1682. If the purchaser prefers to keep the property by paying the balance, as provided in the foregoing article, he owes interest on such balance from the day the action for rescission was commenced. If he prefers to return it and to take back the price, he must return the income from the beginning of the action. Interest on the price which he has paid is also allowed him from the beginning of the action or from the time of payment, if he has not collected any revenue. Civ. C. 1614, 1652. 1683. Rescission for lesion does not take fplace in favour of the purchaser. 1684. It does not take place in any sales which according to law can only be made by order of the Court. Civ. C. 1649. 1685. The rules contained in the foregoing section for cases in which several persons have sold property jointly or separately, and in case the vendor or the purchasei* has left several heirs, shaU likewise be followed in bringing the action for rescission. Civ. C. 1668 et s. 384 OF SALES. Chap. VII. Of Judicial Sales. 1686. If the joint property of several persons cannot be divided conveniently and without loss ; Or if, in a division of joint property made amicably, there is any property which none of the co-parceners can or is willing to take ; The sale takes place at auction and the proceeds are divided among the co-owners. Civ. C. 815 et s., 883, 2109 1687. Each of the co-owners is at liberty to ask that the public be called to the sale. The public must necessarily be called when one of the co-owners is a minor. Civ. C. 460, 839. 1688. The practice and the formahties to be complied with for a judicial sale are explained in the Title Of Successions and in the Code of Procedure. Civ. C. 827, 838 et s. Chap. VIII. Of Assignments of Claims and other Incokpokeal Rights. 1689. In an assignment of a claim, of a right, or of an action against a third party the delivery takes place between the assignor and the assignee by handing over the instrument. Civ. C. 1109, 1116, 1179, 1582, 1583, 1607, 1690, 2073. OF SALES. 385 1690. An assignee is only seized as against third parties by the notice of the assignment given to the debtor. Nevertheless, the assignee may likewise be seized by the acceptance of the assignment given by the debtor in an official instrument. Civ. 0. 841, 1130, 1131, 1143, 1242, 1271, 1295, 1322, 1328, 1583, 1607, 1689, 1691, 2075. 1691. If the debtor has paid the assignor before the latter or the assignee has given notice of the assignment to such debtor, he shall be lawfully released. Civ. C. 1242, 1277, 1295. 1693. The sale or assignment of a claim includes the accessories of the claim, such as the security, the privileges and mortgages. Civ. 0. 1018, 1249, 1615, 2112. 1693. A person who sells a claim or any other incor- poreal right must warrant its existence at the time of the assignment, though no warranty has been stipulated. Civ. C. 1236, 1626 et s., 1640, 1692, 1694. 1694. Such person does not answer for the solvency of the debtor unless he has bound himself thereto, and then only to the extent of the price which he has obtained for the claim. 1695. When he has agreed to warrant the solvency of the debtor such undertaking only applies to his present solvency and does not extend to the future, unless the assignor has made an express stipulation to that effect. Civ. C. 1693, 1694. 1696. A person who sells his hereditary rights without specifying the property in detail is only bound to warrant his capacity as heir. Civ. C. 780, 1156, 1163, 1697, 1698. 1697. If he has already had the benefit of the income C.N. c c 386 OF SALES. of some property or received the amount of any claim belonging to the inheritance, or sold certain things of the succession, he is bound to reimburse the purchaser therefor, unless he has expressly reserved them upon the sale. Civ. C. 1615. 1698. The purchaser, on the other hand, must reimburse the vendor for what he has paid on account of the debts and charges of the succession, and make good to him every- thing that was owed to him, unless there is a stipulation to the contrary. Civ. C. 1697. 1699. A person against whom a contested claim has been assigned can cause himself to be released therefrom by the assignee by reimbursing to him the actual price of the assignment, with the expenses and just charges and interest, from the day the assignee paid the price of the assignment made to him. Civ. C. 841, 1597, 1700 et s. 1700. A claim is supposed to be contested when there is a suit or a dispute as to the existence of a right. Civ. C. 1699. 1701. The provisions mentioned in article 1699 do not apply:— 1. In case the assignment has been made to a co-heir or joint owner of the claim assigned ; 2. "When it has been made to a creditor in payment of what is due to him ; 3. When it has been made to the possessor of the estate, subject to the contested right. ( 387 ) Title Seventh, of exchanges. (Passed 7tli March, 1804 ; promulgated ITth of same month.) 1702. An exckange is a contract by which the parties give respectively to each other one thing for another. 1703. An exchange takes place by simple consent in the same manner as a sale. Civ. C. 711, 1138, 1341, 1347, 1583. 1704. If one of the parties to an exchange has already received the thing given to him in exchange, and proves subsequently that the other contracting party is not the owner of such thing, he cannot be compelled to deliver the thing which he has promised in exchange, but only to return the thing which he has received. Civ. C. 1612, 1653. 1705. The party to an exchange who is dispossessed of the thing which he has received in exchange, has the choice between asking for damages or claiming back his thing. Civ. C. 1142, 1149, 1184, 1630, 1636, 1654, 1704, 1707. 1706. Eescission on account of lesion does not take place in contracts of exchange. 1707. AU the other rules set down for contracts of sale shall moreover apply to exchanges. Civ. C. 1582 et s., 1599. c c 2 ( 388 ) Title Eighth, of conteacts of letting. (Passed 7th March, 1804 ; promulgated 17th of same month.) Chap. I. General Provisions. 1708. There are two sorts of contracts of letting : One for things, The other for work. Civ. C. 1709, 1711 et s.,1779 et s. 1709. The letting of things is a contract hy which one of the parties hinds himself to procure for the other, during a certain time and in consideration of a certain price, which the latter promises to pay him, the enjoyment of a thing. Civ. C. 1127, 1719, 1743, 2118. 1710. The letting of work is a contract hy which one of the parties binds himself to do a certain thing for the other in consideration of a price agreed between them. Civ. C. 1779 et s. 1711. These two modes of letting are also sub-divided into several special kinds : — The letting of houses or of personal property is called a lease /or rent ; The letting of country property, a kase on shares ; The letting of work or labour, a kase ; The letting of animals, of which the profits are divided OF CONTRACTS OF LETTING. 389 between the owner and the one to whom he entrusts them, a lease of cattle ; Estimates, contracts or fixed bargains for undertaking a piece of work in consideration of a stated price also con- constitute a lease when the material is furnished by the person for whom the work is done. These three last kinds are governed by special rules. Civ. C. 1714, 1752, 1763, 1779, 1787, 1800. 1712. Leases of national property, .of property of districts, and of public institutions, are subject to special rules. Chap. II. Of the Letting of Things. 1713. One may let all kinds of personal property or real estate. § 1. Of Rules applying both to Leases of Souses and of Country Property. 1714. Letting can be done in writing or verbally. Civ. C. 1736, 1758, 2102. 1715. If a lease, made without any writing, has not yet been carried out and one of the parties denies its existence, the proof cannot be made by witnesses, however small the price may be, and even if it is alleged that earnest money has been given. The oath can only be proffered to the person who denies that there is a lease. Civ. C. 1341, 1353, 1357. , , i^ 390 OF CONTRACTS OF LETTING. 1716. When there is a controversy about the price of a verbal lease which has already been acted upon, and no receipt has been given, the landlord shall be believed upon his oath, unless the tenant prefers to apply for an appraisal by experts; in which case the expenses of the appraisal shall be borne by the tenant if such appraisal exceeds the price which he has declared. Civ. C. 1357, 1366. 1717. The lessee has the right to sub-let or even to assign his lease to another person if this right has not been taken away from him. It can be taken away wholly or in part. This clause is always necessary. Civ. C. 1142, 1184, 1341, 1353, 1741, 1763, 1766. 1718. The articles of the Title Of Marriage Contracts and of the Respective Rights of Husband and Wife relating to leases of property belonging to married women apply to leases of property belonging to minors. Civ. C. 595, 1429, 1430. 1719. A lessor is bound by the nature of the contract and without any special stipulation being required : — 1. To deliver to the lessee the property leased ; 2. To keep the property in good order so that it can be applied to the use for which it has been let ; 3. To secure to the tenant the peaceful enjoyment thereof during the continuance of the lease. Civ. C. 1720, 1741, 1778. 17S0. A lessor is bound to deliver the property in good repair in all respects. He must, during the continuance of the lease, make all the repairs which may become necessary, with the exception of those incumbent upon the tenant. Civ. C. 1719, 1731, 1741, 1754. OF CONTRACTS OF LETTING. 391 1721. A warranty is due to the lessee for all the con- cealed vices or defects of the property leased which interfere with the use thereof, even if the lessor did not know of them at the time of making the lease. If any loss should result to the lessee from such vices or defects, the lessor is hound to hold him harmless. Civ. C. 1641 et s., 1719, 1724 et s., 1891 et s. 1723. If the property leased is wholly destroyed hy accident during the continuance of the lease, the lease is cancelled by right : if it is only destroyed in part, the lessee may, according to circumstances, either ask for a reduction in the price, or even for the cancellation of the lease. In either case, no indemnity shall be due. Civ. C. 1134, 1728, 1741, 1769. 1723. The lessor cannot change the condition of the thing leased during the continuance of the lease. Civ. C. 1728. 1724. If, during the continuance of the lease, the thing leased requires urgent repairs, which cannot be postponed until its expiration, the lessee must allow them to be made, whatever may be the inconvenience he is put to and although he may be deprived of a part of the thing leased during the time they are being made. But if these repairs last more than forty days, the price of the lease shall be reduced in proportion to the time and the part of the thing leased which he has been deprived of. If the repairs are of such a nature that they render uninhabitable what is necessary to lodge the tenant and his family, he can have the lease cancelled. Civ. C. 1720. 1725. The lessor is not bound to warrant the lessee against the disturbances caused to his enjoyment by acts of violence of third parties, even when they do not claim to have any right to the property leased ; but the lessee can proceed against them in his own name. Civ, C. 1727. 392 OF CONTKACTS OF LETTING. 17S6. If, on the contrary, the tenant or the farmer have been disturbed in their enjoyment in consequence of an action relating to the ownership of the estate, they are entitled to a proportionate reduction in the price of the lease for rent or lease on shares, provided a notice of the disturbance and of the obstacle has been given to the land- lord. Civ. 0. 1768. 1727. If those who have committed the acts of violence claim to have some right to the property leased, or if the lessee has himself been summoned before a Court to be ordered to abandon such property in whole or in part or to allow some servitude to be made use of, he must have the lessor joined on account of his warranty, and a dismissal shall be ordered against such lessee if he demands it by naming the lessor from whom he holds possession. Civ. C. 1768. 17S8. A lessee is bound to two principal obligations : — 1. To make use of the property leased as a prudent owner, and according to the purposes intended by the lease, or according to those presumed under the circumstances if there is no agreement to that effect ; 2. To pay the price of the lease at the times agreed upon. Civ. C. 1134, 1184, 1722, 2202-1. 1729. If the lessee uses the property leased for a different purpose from the one intended, or in such way that a loss might result for the lessor, the latter may, according to cir- cumstances, have the lease cancelled. Civ. C. 1760, 1766. 1730. If a description of the premises has been drawn up between the lessor and the lessee, the latter must return the property in the same condition in which he has received it according to such description, with the exception of what has been destroyed or damaged by old age or by superior force. Civ. C. 655, 1731, 1735, 1755. OF CONTRACTS OF LETTING. 393 1731. If no description of the premises has been made, the lessee is supposed to have received them in good con- dition of repair for occupancy and must return them in the same condition, unless there is proof to the contrary. Civ. C. 1735, 1756. 1732. He is answerable for the dilapidations and losses sustained during his occupancy, unless he establishes that they have not occurred through any fault of his. Civ. 0. 555, 1730, 1731, 1754. 1733. He is responsible in case of fire unless he proves : — That the fire has taken place by accident or superior force or owing to bad construction ; Or that the fire has spread from a neighbouring house. Civ. C. 1148, 1251-3, 1302, 1383, 1592, 1709, 1722, 1728, 1734, 2093. 1734. {Amended hy Law of 5th January, 1883.) — If there are several tenants, each one is responsible for the fire in proportion to the letting value of the part of the premises which they occupy : Unless they prove that the fire commenced in the pre- mises of one of them, in which case that one alone is re- sponsible ; or unless some of them prove that the fire could not have commenced on their premises, in which case such ones are not responsible. 1735. A lessee is responsible for the damages and losses occasioned by the persons belonging to his household or by his sub-tenants. Civ. C. 1384. 1736. If the lease has been made without any writing, one of the parties can only give the other notice to quit by complying with the customs of the place as to the time required. Civ. C. 1715, 1775. 394 OF CONTRACTS OF LETTING. 1737. A lease ceases by rigtt at the expiration of the time specified, when it has been made in writing, and it is not necessary to give notice to quit. Civ. C. 1181, 1775. 1738. If, at the expiration of written leases, the lessee remains and is allowed to continue in possession, a new lease is created, of which the effect is regulated by the article relating to unwritten leases. Civ. C. 1728, 1759, 1776. 1739. When notice to quit has been given, the lessee cannot claim a tacit renewal, although he has continued his occupancy. 1740. In the cases mentioned in the two foregoing articles the security given for the lease does not apply to the obligations resulting from its extension. Civ. C. 2011 et s. 1741. A contract for letting expires by the destruction of the thing leased or by the failure on the part of the lessor and lessee respectively to carry out what they have agreed to. Civ. C. 1184, 1188, 1719, 1728, 1760. 1742. A contract for letting does not expire by the death of the lessor nor of the lessee. Civ. C. 1122, 1795. 1743. If the lessor sells the property leased, the pur- chaser cannot eject the farmer or tenant who has a lease in authentic form or a lease with a positive date, unless such right has been reserved in the contract of letting. Civ. C. 546, 547, 1251, 1750, 1761, 2166, 2182, 2185. 1744. If it has been agreed at the time of the lease that in case of sale the purchaser might expel the farmer or tenant, and no stipulation has been made as to damages, OF CONTRACTS OF LETTING. 395 the lessor is bound to indemnify the farmer or tenant in the following manner. Civ. C. 1746. 1745. In case of a house, an apartment or a store, the lessor shall pay as damages to the tenant who has been ejected a sum equal to the price of the rent during the time which is granted from the notice to quit up to the moving, according to the customs of the place. 1746. In case of country property the indemnity which the lessor must pay to the farmer shall be one-third of the price of the lease for all the time which still remains to run, 1747. The indemnity shall be fixed by experts in case of factories, works and other establishments which require important outlays. 1748. A purchaser who wishes to make use of the privilege reserved by the lease to eject a tenant or farmer in case of sale is also bound to give notice in advance to the tenant, according to the time required by the customs of the place for notices to quit. He must also give notice to the farmer of country pro- perty at least one year in advance. Civ. C. 1736, 1774. 1749. Farmers or tenants cannot be ejected unless the damages hereabove mentioned have been paid to them by the lessor, or if not by him by the new purchaser. 1750. If the lease has not been made by a public instru- ment or has no positive date, the purchaser is not responsible for any damages. Civ. C. 1317, 1328, 1743. 1751. A purchaser with power of redemption cannot make use of the privilege of ejecting the tenant until he has 396 OP CONTEACTS OF LETTING. become the absolute owner by the expiration of the time fixed for the redemption. Civ, C. 1665. § 2. Q/" Special Mules of Leases for Bent. 1752. A tenant who does not furnish the house with enough furniture, may be ejected unless he gives sufficient security to answer for the rent. Civ. C. 1350, 2102, 2279. 1753. A sub-tenant is only liable to the owner to the extent of the rent of the sub-lease which he may owe at the time of the attachment, but he cannot set up payments made in anticipation. Payments made by a sub-tenant, either by virtue of a stipulation contained in his lease or in consequence of a custom of the place, are not supposed to be made in anti- cipation. Civ. C. 1341, 1353, 1717. 1754. Repairs incumbent upon the tenant, or those of small importance for which the tenant is responsible unless there is a stipulation to the contrary, are those which are considered as such by the customs of the place, and among others the repairs to be made : — To fireplaces, backs of chimneys, chimney-pieces and shelves of mantelpieces ; To the plastering of the lower parts of walls of apartments and other places of abode to the height of one meter ; To pavements and tiles of rooms when only a few are broken ; To panes of glass, unless they have been broken by a hailstorm or some other extraordinary accident and resulting from superior force, for which the tenant cannot be made liable ; To doors, windows, partitions or shutters of a shop, hinges, bolts and locks. Civ. C. 1720. OF CONTRACTS OF LETTING. 397 1755. None of the repairs considered as repairs incum- bent upon the tenant shall be charged to tenants when they are occasioned by old age or superior force. Cir. C. 1730. 1756. The cleaning of wells and cesspools shall be paid for by the lessor, unless there is a clause to the contrary. 1757. A lease of furniture supplied to furnish a whole house or a whole main building or a store or any other lodgings is supposed to be made for the ordinary time of leases of houses, main buildings, stores or other lodgings, according to the customs of the place. Civ. C. 1159, 1350, 1352. 1758. A lease of a famished apartment is considered to be made by the year when it has been made for so much a year; By the month when it has been made for so much a month ; By the day when it has been made for so much a day. If there is nothing to show that the lease has been made for so much a year, a month, or a day, the letting is sup- posed to be made according to the customs of the place. Civ. C. 1159, 1736. 1759. If the tenant of a house or an apartment continues his occupancy after the expiration of the written lease without objection on the part of the lessor he shall be considered to hold them under the same conditions for the term established by the customs of the place and he cannot move or be ejected until after a notice to quit has been given according to the time required by the customs of the place. Civ. C. 1737, 1738. 1760. In case of cancellation owing to the fault of the lessee, he is obliged to pay the price of the rent during the 398 OF CONTRACTS OF LETTING. time required to re-let, without prejudice to the damages which may result from his wrongful act. Civ. C. 1729, 1741, 1752, 2102-1. 1761. A lessor cannot cancel a lease, even if he declares that he wants himself to live in the house leased, unless there is a stipulation to the contrary. Civ. C. 1743. 1762. If it has been agreed in the lease that the lessor might come and occupy the house, he is bound to give notice to quit in advance at the times required by the customs of the place. Civ. C. 1736, 1743. % S. Of Special Mules of Leases on Shares. 1763. A person who cultivates land under condition of a division of the revenue with the lessor cannot sub-let or assign his lease unless such power has been expressly granted to him therein. Civ. C. 1717. 1764. In case of violation of such a condition, the owner has the right to re-enter into possession and the lessee shaU be ordered to pay the damages resulting from the non-per- formance of the lease. Civ. C. 1741. 1765. If, in a lease on shares, a smaller or larger area has been given to the property than it really has, the price which the farmer has to pay shall only be increased or re- duced in the cases and according to the rules contained in the Title Of Sales. Civ. C. 1617 et s. 1766. If a lessee of country property does not place upon it the necessary cattle and implements for its cultivation ; if he stops cultivating it or does not cultivate it as a prudent owner ; if he applies the property leased to a use for which it was not intended, or in general if he does not fulfil the OF CONTRACTS OF LETTING. 399 conditions of the lease and the lessor suffers some damage thereby, he may, according to circumstances, have the lease cancelled. In case of cancellation owing to an act of the lessee, he is liable for damages, as is stated in article 1764. Civ. C. 1729, 1746, 2102-1. 1767. Every lessee of country property is bound to house the crops in the places designated for that purpose according to the lease. Civ. C. 1777, 1778. 1768. A lessee of country property is bound to give notice to the owner of aU encroachments upon the property, under penalty of all costs and damages. This notice must be given within the same time that is required in case of a summons, according to the distance of the place. Civ. C. 1726. 1769. If the lease is made for several years and during the lease the whole or at least the half of a crop has been destroyed accidentally, the farmer can ask for a reduction of the price of the lease unless his loss is made up by previous crops. If the loss has not been made up, an appraisal of the reduction can only be made at the end of the lease, at which time an average shall be taken of all the years of his occu- pancy. Nevertheless, the Judge may temporarily exempt the lessee from paying a part of the price in consequence of the loss he has sustained. Civ. C. 1722, 1771. 1770. If the lease is only for one year and the loss is of the whole crop or at least of one-half, the lessee shall be released from the payment of a proportionate part of the price of the lease. He cannot claim any reduction if the loss is less than one-half. Civ. C. 1769, 1771 et s. 400 OF CONTRACTS OF LETTING. 1771. A farmer cannot obtain any reduction when the loss of the crops occurs after they have been separated from the earth, unless the lease gives the owner a part of the crop in kind ; and in such case the owner must bear his share of the loss, provided a demand had not been made upon the lessee to deliver his portion of the crops. Neither can the farmer ask for a reduction when the cause of the loss already existed and was known at the time of the making of the lease. Civ. C. 1302. 1773. A lessee may be made responsible for accidents, by an express stipulation. Civ. C. 1134, 1302, 1773. 1773. This stipulation shaU only apply to ordinary accidental cases, such as hailstorms, lightning, frost, or falHng-ofiP. It does not extend to extraordinary accidental cases, such as destruction resulting from war or floods, which the country is not ordinarily subject to, unless the lessee has assumed all accidental cases, whether foreseen or unfore- seen. 1774. An unwritten lease of country property is supposed to be made for the time that is necessary for the lessee to take in aU the crops of the property leased. For instance, a lease on shares of a field, a vineyard, or any other property of which the crops are all taken in during the course of the year, is supposed to be made for one year. A lease of arable lands, when they are divided into breaks or seasons, is supposed to be made for as many years as there are breaks. Civ. C. 1715, 1736. 1775. A lease of country property, although unwritten, ceases by right at the expiration of the time for which it is supposed to have been made in accordance with the fore- going article. Civ. C. 1737. OP CONTRACTS OF LETTING. 401 1776. If, at the expiration of written leases for country- property, the lessee remains or is left in possession, a new lease is created, of which the effects are regulated in accordance with art. 1774. Civ. 0. 1738, 1759, 1774. 1777. The outgoing farmer must leave to the one who takes his place to cultivate the lands, suitable lodgings and other facilities for the work of the foUowiag year; and reciprocally the farmer entering into possession must furnish to the one who is leaving, suitable lodgings and other facilities for the consumption of fodder and for the crops which are still to be taken in. In both cases the customs of the place must be complied with. Civ. C. 1767. 1778. The outgoing farmer must also leave the straw and the manure of the year if he has received them when he commenced his enjoyment: and even if he has not received them, the owner may retain them after appraisal. Chap. III. Of the Letting of "Work and Industry. 1779. There are three principal kinds of letting of work and industry : 1. The hiring of workmen who enter the service of a person ; 2. The hiring of carriers, as well by land as by water, who undertake to carry persons or goods ; 3. The hiring of contractors for a work on an estimate or by the job. Civ. C. 1780 et s., 1782 et s., 1787 et s. C.N. D D 4G2 OP CONTBAOTS OF LETTING. § 1. Of the Hiring of Servants and Workmen. 1780. {Amended hy Law of 27th December, 1890). A person can only bind himself to give his services for a certain time or a special enterprise. The hiring of services made without a fixed duration can always cease at the wish of one of the contracting parties. Nevertheless, the cancellation of the contract at the wish of one only of the contracting parties may give rise to damages. To fix the indemnity to be granted, if there shoidd be reason therefor, the customs, the nature of the services hired, the time elapsed, the amounts withheld and the pay- ments made in view of a retiring pension, and generally all the circumstances which may justify the existence and determine the extent of the damage caused, shall be taken into account. The parties cannot beforehand renounce the contingent right to claim damages in consequence of the foregoing provisions. The controversies to which the application of the fore- going paragraphs may give rise when they are brought before the Civil Tribunals and before the Courts of Appeals shall be prepared for trial as urgent cases and tried forth- with. 1781. A master shall be believed upon his affirmation : As to the amount of the wages ; As to the payment of the salary for the year elapsed; And as to the instalments paid for the current year (y). (y) This art. was repealed by the law of 2iid August, 1868. OF CONTRACTS OP LETTING. 403 § 2. 0/" Carriers ly Land and Water. 1782. Carriers by land and water are subject, with respect to tbe safe-keeping and preservation of the things which are entrusted to them, to the same obligations as the innkeepers who are mentioned in the Title Of Deposits and Sequestration. Civ. C. 1952, 2102—6. 1783. They are answerable, not only for what they have already received on their ships or in their wagons, but also for what has been delivered to them on the port or in their storehouses to be placed on their ships or wagons. Civ. C. 1384, 1782, 1784, 1786. 1784. They are responsible for the loss of or the injuries to the things which are entrusted to them, unless they prove that the same have been lost or injured accidentally or by superior force. 1785. Common carriers by land and water and those who cart for the public must keep books for the money, the articles and the packages they take charge of. Civ. C. 1784. 1786. Common carriers and agents of public wagons and carts, masters of boats and ships, are also subject to special regulations, which form the law between them and other citizens. § 3. Of Estimates and Jobs. 1787. When a person has charge of carrying out a work, it can be agreed that he will only furnish his work or industry, or that be will also furnish the materials. Civ. C. 1341, 1348. 1788. If, in case the workman furnishes the materials, D D 2 404 OF CONTRACTS OF LETTING. the thing is destroyed before being delivered, in whatever manner it may be, the loss falls upon the workman, unless the employer has been given notice to receive the thing. Civ. C. 1302, 1789, 1790. 1789. In case the workman only furnishes his work or his industry and the thing happens to be destroyed, the workman is only liable for his negligence. Civ. C. 1382, 1383. 1790. If, in the case mentioned in the foregoing article, the thing happens to be destroyed, but not through any fault of the workman, before the work has been received and without the employer having been given notice to examine it, the workman cannot claim any wages unless the destruc- tion of the thing is due to the bad quahty of the materials. 1791. If the work is for several pieces or by measure, it may be examined by the parties : it is supposed to be finished for all the parts paid for if the employer pays the workman in proportion to the work done. 1792. If the building constructed for a given price is destroyed, wholly or in part, owing to bad construction or even to some defect of the soU, the architect and the contractor are responsible for ten years. Civ. C. 1788, 1793, 2270. 1793. When an architect or a contractor has undertaken to put up a building for a contract price according to plans settled and agreed upon with the owner of the land, he cannot ask for any increase in the price, either on the ground that labour and materials have gone up in value or on the ground of changes or additions made in the plans^ unless these changes and additions have been authorized in writing and the price agreed upon with the owner. Civ. C. 2103-4, 2110. OF CONTRACTS OF LETTING. 405 1794. An employer may of his own accord cancel a job which has been undertaken, even if the work has been already commenced, by compensating the contractor for all his expenses, his work and all he might have earned in such enterprise. 1795. A contract for the letting of work expires by the death of the workman, the architect or the contractor. Civ. C. 1237. 1796. But the owner is bound to pay to their successor the amount of the work done and of the materials pre- pared, in proportion to the price set down in the contract, but only if the work and the materials can be of use to him. 1797. A contractor is answerable for the acts of the persons whom he employs. Civ. C. 1384. 1798. Masons, carpenters and other workmen who have been employed in the construction of a building or other works undertaken upon a contract only have an action against the person for whom the work has been done to the extent of what such person owes the contractor at the time the action is commenced. 1799. Masons, carpenters, locksmiths and other work- men who make contracts by the job for their own account are subject to the rules contained in the present section : they become contractors for the kind of work they undertake. 406 OB- CONTRACTS OF LETTING. Chap. IV. Of Leases of Cattle. § 1. General Provisions. 1800. A lease of cattle is a contract by which one of the parties gives to the other a stock of cattle, to be kept, fed and cared for under conditions agreed upon between them. 1801. There are several kinds of leases of cattle : Simple or ordinary leases of cattle ; Leases of cattle by halves ; Leases of cattle granted to a farmer or settler who pays in kind ; There is also a fourth kind of contract improperly called lease of cattle. Civ. C. 1804 et s., 1818 et s., 1821 ei s., 1827 et s., 1831. 1802. A lease of cattle can be made for all kinds of animals which can be raised or can be made use of for agricultural or commercial purposes. 1803. If there is no special agreement these contracts are governed by the following principles. Civ. C. 1134, 1811. ^ 2. 0/ Simple Leases, of Cattle. 1804. A simple lease of cattle is a contract by which one person gives to another cattle to be kept, fed and cared for on condition that the lessee shall have the benefit of one-half of the growth and shaU also bear one-habE of the loss. Civ. C. 1811. 1806. The estimate placed upon the cattle ia the lease OP CONTHACTS OF LETTING. 407 does not confer ownership upon the lessee : its only effect is to fix the loss or the gain which may exist at the expira- tion of the lease. Civ. 0. 1810, 1817, 1822. 1806. A lessee is hound to look to the preservation of the cattle as a prudent owner. Civ. C. 1810, 1817. 1807. He is only liable for accidents when they result from negligence on his part, without which the loss would not have occurred. Civ. C. 1148, 1382. 1808. In case of controversy the lessee is bound to prove the accident, and the lessor is bound to prove the negligence which he charges the lessee with. Civ. C. 1302, 1315. 1809. A lessee who is released owing to an accident is always bound to account for the skins of the animals. 1810. If all the cattle die, not through any negligence of the lessee, the loss faUs upon the lessor. If only a part of them die, the loss is divided jointly according to the amount of the original appraisal and the amount of the appraisal at the expiration of the lease. Civ. C. 1302, 1827. 1811. It cannot be agreed : That the lessee shall bear the total loss of the cattle, although it occurred by accident and not through his negli- gence ; Or that he shall bear a larger part of the losses than of the profits ; Or that the lessor, at the end of the lease, shall be entitled to something more than the cattle have produced. Any agreement of this kind is void. The lessee has the sole benefit of the milk, the manure and the labour of the cattle leased. 408 OF CONTRACTS OF LETTING. The wool and the growth of the cattle are divided. Civ. C. 547, 583, 1825. 1812. A lessee cannot dispose of any head of cattle, either of the stock or of the growth, without the consent of the owner, nor can the latter dispose of any without the lessee's consent. 1813. When a lease of cattle is made to a farmer of another person, a notice thereof must he given to the land- lord from whom such farmer holds possession : otherwise the landlord can have the cattle attached and sold for what his farmer owes him. Civ. C. 2102. 1814. A lessee cannot shear the cattle without notifying the lessor. Civ. C. 1811. 1815. If no time has been fixed by agreement for the duration of the lease, it is supposed to have been made for three years. Civ. C. 1774. 1816. A lessor may sue to have it cancelled sooner if the lessee does not fulfil its conditions. Civ. C. 1184, 1769. Ii317. At the end of the lease, or at the time it is can- celled, a new appraisal of the cattle is made. The lessee can take heads of cattle of each kind to the extent of the first appraisal : the balance is divided. If there are not enough heads of cattle to make up the amount of the first appraisal, the lessor takes what remains and the parties account to each other for the loss. Civ. C. 1805, 1810, 1826. § 3. Of Leases of Cattle by Malms. 1818. A lease of cattle by halves is a partnership by which each one of the contracting parties famishes one-half OP CONTRACTS OP LETTING. 409 of the cattle, which remain in common for profits and losses. Civ. C. 1803, 1841, 1853. 1819. The lessee has the sole benefit of the milk, the manure and the labour of the cattle, as in a simple lease of cattle. The lessor is only entitled to one-half of the wool and of the growth. Any agreement to the contrary is void, unless the lessor is the owner of the farm of which the lessee is the farmer or settler paying in kind. Civ. C. 1823. 18S0. All the other rules of a simple lease of cattle apply to leases of cattle by halves. § 4. 0/ Leases of Cattle granted by Landlords to their Farmers or Settlers paying in Kind. Sub-sect. 1. Of Leases of Cattle given to the Farmer. 1821. This lease of cattle {also called iron lease of cattle) is one by which the landlord of a farm lets it on condition that, at the expiration of the lease, the farmer shall leave cattle of a value equal to the estimated price of the cattle which he has received. 1823. The appraisal of the cattle given to the farmer does not confer upon him the ownership thereof, but, never- theless, places them at his risk. Civ. C. 1805, 1825. 1823. All the profits belong to the farmer during the continuance of the lease, unless there is a stipulation to the contrary. Civ. C. 1819. 1824. In leases of cattle made to a farmer the manure does not form part of the personal profits of the lessees but 410 OF CONTRACTS OF LETTING. belongs to the farm and nanst be exclusively applied to the cultivation thereof. Civ. C. 1778. 1825. The loss, even total and accidental, falls wholly upon the farmer, unless there is an agreement to the con- trary. Civ. C. 1822. 1826. At the end of the lease the farmer cannot keep the cattle by paying the original estimated value : he must leave cattle of a value equal to what he has received. In case of deficiency he must make it good ; and the surplus only belongs to him. Civ. C. 1817, 1822. Sub-sect. 2. Of Leases of Cattle given to Settlers paying in Kind. 1827. If all the cattle die, not through the negligence of the lessee, the loss falls upon the lessor. Civ. C. 1810, 1825. 1828. It can be stipulated that the lessee shall abandon to the lessor his share of the wool at a price below the ordinary value ; that the lessor shall have a larger share of the profits ; that he shaU have one-half of the milk ; But it cannot be stipulated that the settler shall bear the whole loss. Civ. C. 1811. 1829. This lease of cattle expires with the lease of the farm. Civ. C. 1737, 1774. 1830. It is moreover subject to all the rules of a simple lease of cattle. Civ. C. 1804 et s. § 5. Of the Contract incorrectly called Lease of Cattle. 1831. When one or more cows are given to be kept and fed, the lessor retains tbe ownership thereof: he is only entitled to the benefit of the calves which are born of them. ( 411 ) Title Ninth. of contracts of partnership. (Passed 8th March, 1804 ; promulgated 18th of same month.) Chap. I. General Provisions. 1832. A partnership is a contract by which two or several persons agree to place a thing in common with a view of dividing the profits which may result therefrom. Civ. C. 1102 et s. 1833. Every partnership must have a licit cause and be made in the common interest of the parties. Each partner must contribute thereto either money or other property, or his work. Civ. 0. 1133, 1832, 1855. 1834. Every partnership must be made in writing if it is for an object of which the value exceeds one hundred and fifty francs. No oral testimony shall be admitted against or beyond the contents of the articles of co-partnership, nor as to what might be alleged to have been said previously to the same or at the time thereof or since then, even in case of a sum or value less than one hundred and fifty francs. Civ- C. 1341, 1347, 1353, 1866. 412 OP CONTRACTS OP PARTNERSHIP. Chap. II. Of Different Kinds of Pabtneeship. 1835. Partnerships are general or particular. Civ. C. 1836 et s., 1841 et s. § 1. 0/ General Partnerships. 1836. General partnerships are divided into two kinds, partnerships of all present property and general partner- ships of profits. 1837. A partnership of all present property is one hy which the parties place in common all the personal property and real estate which they own at the present time and the profits which they may obtain therefrom. They may also include therein all other kinds of profits, but the property which might come to them by inheritance, donation or legacy only forms part of the partnership as to the enjoyment thereof: and it is not allowed to make any stipulation for the purpose of including the ownership of such property, excepting between husband and wife and in accordance with what is provided in relation to them. Civ. C. 1130, 1497, 1526. 1838. A general partnership of profits includes every- thing the parties may earn by their work, for whatever cause it may be, during the continuance of the partnership : the personal property which each of the parties owns at the time of the contract is also included, but their individual real estate is only included as to the enjoyment. Civ. C. 527, 578, 1847, 1853. 1839. A simple agreement for a general partnership OF CONTRACTS OF PARTNERSHIP. 413 made without any otlier explanation only carries with, it a general partnership of profits. 1840. A general partnership can only exist between persons who are respectively capable of giving to or receiv- ing from each other, and it is not prohibited to give an advantage to oneself to the detriment of other persons. Civ. C. 854, 906, 913 et s., 1098. §2.0/' Particular Partnerships. 1841. A particular partnership is one which only applies to certain specified things or to their use or to the revenue to be gathered therefrom. Civ. C. 1126. 1842. A contract by which several persons become partners, either for a specified enterprise or for carrying on a trade or profession, is also a particular partnership. Civ. C. 1873. Chap. III. Of Agreements of Paktneks among themselves and WITH respect to Thiru Parties. § 1. Of Agreements of Partners among themselves. 1843. A partnership commences fromthe timeof the con- tract if the same does not fix any other time^. 1844. If no agreement has been made as to the duration of the partnership it is supposed to have been contracted for the whole life of the partners, subject to the restriction contained in Art. 1869 ; or if the business is such that its 414 OF CONTRACTS OP PAETNEESHIP, duration is limited, for aU the time this business is to last. Civ. C. 1865. 1845. Each partner owes the partnership everything he has promised to contribute to it. When this contribution consists in a special thing and the partnership is dispossessed thereof, the partner is re- sponsible to the partnership in the same way as a vendor is to his purchaser. Civ. C. 1619, 1625, 1833, 1846. 1846. A partner who was to contribute a sum of money to the partnership and who has not done so owes, by right and without demand, interest on this amount from the day it should have been paid. The same rule applies to the sums which he has taken out of the funds of the partnership, from the day he has withdrawn them for his special benefit. AU of which is without prejudice to greater damages if there is occasion therefor. Civ. C. 1146, 1149, 1153. 1847. Partners who have agreed to contribute their work to the partnership are accountable to it for all the profits which they have made by the kind of work which forms the object of such partnership. Civ. C. 1853. 1848. When one of the partners is a creditor for his own special account for an amount due by a person who also owes the partnership an amount likewise due, the attribu- tion of what he receives from such debtor must be made with respect to the claim of the partnership and his own in proportion to both claims, even if by his receipt he has directed that the whole payment should be attributed to his private claim : but if in his receipt he has expressed that the whole payment should be attributed to the partnership claim, this stipulation shall be carried out. Civ. C. 1253, 1849. OF CONTRACTS OF PARTNERSHIP. 415 1849. "WTien one of the partners has received his entire share of a joint claim and the debtor has since become in- solvent, such partner is bound to return to the common fund what he has received, even if he has given a special receipt /or his share. 1850. Each partner is liable to the partnership for the damages occasioned by his negligence, and he cannot offset such damages against the profits which his work has brought him in connection with other business. Civ. C. 1146, 1291, 1382. 1851. If the property of which the enjoyment only has been granted to the partnership consists in special and specified things which are not consumed by use, they remain at the risk of the partner who owns them. If these things are of a nature to be consumed ; if they would be damaged by being kept ; if they were intended to be sold or if they have been put into the partnership upon a valuation given to them in an inventory, they are at the risk of the partnership. If the thing has been appraised, the partner can only claim the amount of the valuation. Civ. C. 1302, 1845, 1867. 1852. A partner has an action against the partnership not only on account of the sums which he has disbursed for it, but also on account of the obligations which he has con- tracted in good faith for the busiuess of the partnership and the risks inseparable from his management. Civ. C. 1202, 1214, 1845 et s., 1862, 1998. 1853. When the articles of partnership do not fix the share of each partner in the profits or losses, each one's share is in proportion to his contribution to the capital of the partnership. 416 OF CONTRACTS OF PARTNERSHIP. As regards the one who only contributes his work, his share of the profits or losses is fixed as if his contribution had been the same as the one of the partner who has con- tributed the least. Civ. C. 1832, 1863. 1854. If the partners have agreed to leave it to one of them or to a third party to fix the shares, the settlement thereof cannot be attacked unless it has manifestly been made against equity. No claim shall be admitted in this respect if more than three months have elapsed since the party who claims to have been wronged has had knowledge of the settlement or if he has commenced to act upon such settlement. Civ. C. 1592. 1855. An agreement by which one of the parties would receive all the profits is void. A stipidation which exempts from all contribution to the losses the sums or articles contributed to the capital of the partnership by one or several partners shall likewise be void. Civ. C. 6, 1172. 1856. A partner who has charge of the management by virtue of a special clause of the articles of partnership can, notwithstanding the objections of the other partners, per- form all acts relating to his management, provided there is no fraud on his part. This power cannot be revoked without legitimate cause so long as the partnership lasts ; but if it has only been given by an agreement subsequent to the articles of partner- ship, it can be revoked as a simple power of attorney. Civ. C. 1859, 1991, 2001, 2004 et s. 1857. When several partners have charge of the manage- ment, without their duties being specified or without it being expressed that one of them could act without the OF CONTRACTS OF PARTNERSHIP. 417 other, each of them can perform separately all the acts connected with such management. Civ. 0. 1995. 1858. If it has been stipulated that one of the managers cannot do anything without the other, one of them cannot act in the absence of the other without a new agreement, even in case of a positive impossibility for one of them to take part in the acts of management. Civ. C. 1852, 1862, 1989. 1859. In default of special stipulations as to the mode of management, the following rules are applied : — 1. The partners are supposed to have given reciprocally to each other the power to manage. What each one does is valid, even as regards the shares of his partners, without their consent having been obtained ; subject to the right which belongs to the latter, or one of them, to object to the operation before it is closed ; 2. Each partner may make use of the things belonging to the partnership, provided he uses them for the purpose for which they are intended by custom and does not use them against the interests of the partnership or in a way to prevent his partners from using them according to their rights ; 3. Each partner has the right to bind his partners to incur with him the expenses which are necessary for the preservation of the property of the partnership ; 4. One of the partners cannot make any changes in the real estate forming part of the partnership, even if he claims that they are to the advantage of such partnership, unless the other partners consent thereto. Civ. C. 1165, 1375, 1381, 1862, 1988, 2102. 1860. A partner who is not a manager cannot convey or hypothecate the property, even personal, forming part of the partnership. C.N. E E 418 OF CONTKACTS OP PAETNEESHIP. 1861. Each partner may, without the consent of his partners, take into partnership with himself a third party in connection with his share of the partnership : he cannot take him into the partnership without such consent, even if he has the management thereof. § 2. Of Agreements of Partners with respect to third parties. 1862. In partnerships which are not commercial, the partners are not jointly liable for the partnership debts and one partner cannot bind the others if the latter have not con- ferred upon him the power so to do. Ciy. 0. 1859, 1873. 1863. Partners are liable to creditors with whom they have dealt, each one for an equal sum and share, even if the share of one of them in the partnership is smaller, unless the contract has specially restricted the responsibility of one of the partners to the extent of his share. 1864. A stipulation to the effect that an obHgation is assumed for account of the partnership only binds the con- tracting partner and not the others, unless the latter have given him power so to do or unless the thing has turned out to the benefit of the partnership. Civ. C. 1859, 1863. OV CONTRACTS OF PARTNERSHIP. 419 Chap. IV. Of the Different Wats in which a Partnership Expires. 1865. A partnership expires : 1. By the expiration of the time for ■which it has been formed ; 2. By the destruction of the thing or the fulfilment of the operation ; 3. By the natural death of one of the partners ; 4. By the civil death (z), the interdiction or the insol- vency of one of them ; 6. By the wish expressed by one or several not to re- main partners. Civ. C. 1183, 1184, 1226, 1231, 1844, 1867, 1868, 1871. 1866. An extension of a partnership made for a fixed period can only be proved by a writing made in the same form as the contract of co-partnership. Civ. C. 1341, 1347, 1353, 1834. 1867. When one of the partners has promised to place in common the ownership of a thing the loss of which has occurred before it has been so placed, this produces the dissolution of the partnership with respect to all the partners. The loss of a thing also dissolves the partnership in all ■cases when the use thereof alone has been placed in common and the ownership has remained in the hands of the partner. But the partnership is not dissolved by the loss of a thing of which the ownership has already been brought into the partnership. Civ. 0. 1138, 1845, 1851. (z) Civil death was abolislied by the law of Slat May, 1854. E E 2 420 OF CONTRACTS OF PARTNERSHIP. 1868. If it has been stipulated that in case of the death of one of the partners the partnership should continue with his heir, or only among the surviving partners, these pro- visions shall be followed : in the second case the heir of the decedent is only entitled to a distribution according to the condition of the partnership at the time of the death and only shares in subsequent rights in so far as they may necessarily result from what has taken place before the death of the partner from whom he inherits. Civ. C. 1865. 1869. The dissolution of a partnership by the wish of one of the parties only appHes to partnerships of which the duration is unlimited and takes place by a renunciation, notice of which is given to all the partners, provided such renunciation is made in good faith and not for cross pur- poses. Civ. C. 1844. 1870. A renunciation is not in good faith when the partner renounces for the purpose of appropriating to him- self alone the profits which the partners hope to earn jointly. It is made for cross purposes when the things are no longer entire and it is important for the partnership that its dissolution should be deferred. 1871. A dissolution of partnership for a limited time cannot be asked for by one of the partners before the time agreed upon, unless there are good causes therefor, such as when another partner violates his agreement or a permanent infirmity unfits him for the business of the partnership, or other such simUar causes of which the soundness and importance are left to the discretion of the Judges. Civ. C 1184, 1865. 1873. The rules relating to divisions of successions, the manner of making the same, and the obligations resulting OF CONTRACTS OY PARTNERSHIP. 421 therefrom among co-heirs, " apply to divisions among partners. Civ. 0. 792, 815 et s., 826. Provision relating to Commercial Partnerships, 1873. The provisions of the present Title only apply to commercial partnerships as regards the points which are not in any way in opposition to the laws and customs of trade. ( 422 ) Title Tenth. OF LOANS. (Passed March 9th, 1804 ; promulgated 19th of same month.) 1874. There are two kinds of loans : Loans of things which can be used without being de- stroyed ; And loans of things which are consumed by the use which is made of them. The first kind is called loans for use or commodatum ; the second is called loans for consumption or simply loans. Civ. C. 1875, 1892. Chap. I. Of Loans for Use, or Commodatum. § 1. Of the Nature of Loans for Use. 1875. A loan for use, or commodatum is a contract 'by which one of the parties delivers to the other a thing to be used on condition on the part of the borrower' to return it after having made use of it. 1876. This loan is essentially gratuitous. 1877. The lender remains the owner of the thing loaned. Civ. C. 1880, 1885, 1893. OP LOAIfS. 423 1878. Everything which is in trade (a) and which is not coDsumed by use may form the objed of such an agreement. Civ. C. 1128, 1894, 1938. 1879. Agreements which are entered into by way of commodatum extend to the heirs of the person who makes the loan and to the heirs of the one who borrows. But if the loan has only been made on account of the borrower and to him personally, then his heirs cannot con- tinue to have the enjoyment of the thing loaned. Oiv. C. 1122. % 2. 0/ the •Obligations of the Borrower. 1880. The borrower is bound to take care of and pre- serve the thing loaned in the same way as a prudent owner. He can only use it for the use for which it is fitted by its nature or to which it shall apply by contract, aU of which shall be under penalty of damages if there is occasion there- for. Civ. C. 578, 1137, 1728. 1881. If the borrower uses the thing for another pur- pose or for a longer time than he should have done, he shall be liable for the loss which may have occurred, even accidentally. Civ. C. 1245, 1302. 1882. If the thing loaned is destroyed by an accident from which the borrower might have saved it by making use of his own thing, or if, being only able to save one of the two, he has given the preference to his own thing, he is liable for the loss of the other. Civ. Civ. 1148. 1883. If the thing has been appraised when it was (a) The word " trade " must be taken in a broad sense, and applies to property belonging to private individuals in contradistinction to public property. 424 OF LOAKS. loaned, the loss which happens, even by accident, shall be sustained by the borrower if there is no agreement to the contrary. Civ. C. 1148, 1851. 1884. If the thing is damaged solely by the effect of the use for which it has been borrowed and without any laches on the part of the borrower, he is not responsible for the damage. Civ. C. 1245. 1885. The borrower cannot retain the thing as compen- sation for what the lender owes him. Civ. C. 1293. 1886. If, for the purpose of making use of the thing, the borrower has incurred certain expenses, he cannot claim repayment thereof. Civ. C. 1890. 1887. If several persons have borrowed the same thing jointly they are jointly and severally liable to the lender. Civ. C. 1200, 1202, 1222, 1225. § 3. O/ the Obligations of a Lender for Use. 1888. A lender cannot take back the thing loaned before the time agreed upon, or in the absence of an agreement, until it has been applied to the use for which it was borrowed. Civ. C. 1185 et s. 1889. Nevertheless, if, during that time, or before the borrower has ceased to need the thing, the lender happens to be in pressing and unforeseen want of his thing the Judge may, according to circumstances, compel the borrower to return it to him. 1890. If, during the continuance of the loan, the borrower has been compelled to incur for the preservation of the thing some extraordinary and necessary expenses, so OF LOANS, 425 urgent that he was not able to notify the lender, the latter shall be bound to repay the same to him. Oiv. C. 1886. 1891. When the thing loaned has such defects that it may cause injury to the person who makes use of it, the lender is responsible if he knew of such defects and did not warn the borrower. Oiv. C. 1382, 1641 et s. Chap. II. Or Loans for Consumption or Simple Loans. § 1. Of the Nature of Loans for Consumption. 1893. A loan for consumption is a contract by which one of the parties delivers to the other a certain quantity of things which are consumed by use, on condition that the latter shall return to him as many of the same kind and quality. 1893. In consequence of such a loan the borrower becomes the owner of the thing loaned ; and the loss falls upon him in whatever manner it may have occurred. 1894. Things which, although of the same kind, differ from each other individually, such as animals, cannot be given by way of loan for consumption : the loan is then for use. 1895. The claim resulting from a loan of money is always for the numerical sum mentioned in the contract. If there has been an increase or decrease in the value of the monies before the time of the payment, the debtor must 426 OF LOAJsrs. return the numerical sum loaned and shall only return this sum in the currency current at the time of the payment. Civ. C. 1896. 1896. The rule set down in the foregoing article does not take effect if the loan has been made in bullion. Civ. C. 1243. 1897. If bullion or provisions have been loaned the debtor must always return the same quantity and quaHty, whatever may be the increase or decrease in their value, and he has nothing else to return. Civ. C. 1243, 1246. § 2. Of the Obligrxtions of the Lender. 1898. In a loan for consumption the lender is held liable in the manner set forth in article 1891 in case of a loan for use. 1899. The lender cannot claim the return of the things loaned before the time agreed upon. Civ. C. 1888. 1900. If no time has been specified for the restitution, the Judge may grant the borrower a certain time according to circumstances. Civ. C. 1244, 1888. 1901. If it has only been agreed that the borrower should pay when he could, or when he had means therefor, the Judge shall fix a time for payment, according to circum- stances. Civ. C. 1900. § 3. 0/ the Obligations of the Borrower. 1902. The borrower is bound to return the things loaned in same quantity and quality and at the time agreed upon. Civ. C. 1185, 1244, 1892. OF LOANS. 427 1903. If it is not possible for him to do so, be is bound to pay the value thereof, taking into account the time when and the place where the thing was to be returned, according to the agreement. If the time and place have not been fixed, the payment shall be made according to the value at the time and at the place where the loan has been made. Civ. C. 1247. 1904. If the borrower does not return the things borrowed, or their value, at the time agreed upon, he owes interest thereon from the day of the beginning of the action. Civ. C. 1153, 1907. Chap. III. Or Loans with Interest. 1905. It is allowed to agree that interest shall be paid on simple loans, either of money or of provisions or of other personal things. Civ. 0. 2277. 1906. The borrower who has paid interest which was not agreed upon can neither claim it back nor deduct it from the capital. Civ. C. 1235. 1907. Interest is legal or conventional. Legal interest is fixed by law (J). Conventional interest can exceed legal interest whenever the law does not prohibit it. The rate of conventional interest must be fixed in writing. Civ. C. 456, 474, 609, 612, 856, 1153, 1207, 1440, 1473, 1548, 1570, 1620, 1652, 1682, 1846, 1904, 2001, 2028. 1908. A receipt for a capital, given without reserve (6) The legal rate of interest in France in civil matters is 5 per cent. (Law of 3rd of Sept. 1807.) 428 OF LOANS. as to the interest, supposes the payment thereof and operates as a release therefor. Civ. C. 1319, 1320, 1350. 1909. Interest can be stipulated upon a capital which the lender undertakes not to claim back. In such case the loan takes the name of settlement of annuity. Civ. C. 530, 1912, 1919, 1968 et s. 1910. Such an annuity may be taken out in two ways : perpetually, or for a lifetime. Civ. C. 1968. 1911. A perpetual annuity is essentially redeemable. The parties can only agree that the redemption shall not take place before a time which cannot exceed ten years, or without having notified the creditor at a time in advance which shall be fixed between them. Civ. C. 530, 1187. 1912. The debtor of a perpetual annuity may be com- pelled to redeem it : 1. If he ceases to fulfil his obligations during two years ; 2. If he fails to furnish to the lender the security promised by the contract. Civ. C. 1178, 1184, 1188. 1913. The capital of a perpetual annuity likewise be- comes due in case of bankruptcy or insolvency of the debtor. Civ. C. 1188. 1914. The rules relating to life annuities are set forth under the Title Of Contingent Contracts. Civ. C. 1964. ( 429 ) Title Eleventh, op deposits and op sequestration. (Passed 14th Marcli, 1804 ; promulgated 24th. of same month.) Chap. I. Of Deposits in General and of their Various Kinds. 1915. A deposit is in general an act by which a person receives the thing of another person, with the obligation to keep it and to return it in kind. 1916. There were two kinds of deposits : deposits properly so-called, and sequestrations. Civ, C. 1917, 1955. Chap. II. Of Deposits Properly so Called. § 1. Of the Nature and Essence of Contracts of Deposit. 1917. A deposit, properly so called, is a contract which is essentially gratuitous. Civ. C. 1105, 1936, 1957. 1918. It can only apply to personal property. Civ. C. 1959. 1919. It is only complete by the actual or fictitious delivery of the thing deposited. 430 OF DEPOSITS AND SEQUESTRATION. Fictitious delivery is sufficient when the depositary is already in possession in some other capacity of the thing agreed to be left with him as a deposit. Civ. 0. 1606. 1920. Deposits are voluntary or obligatory. Civ. C. 1921, 1949. %2. Of Voluntary Deposits. 1921. Voluntary deposits take place by the reciprocal consent of the person making them and of the person who receives them. Civ. C. 1108, 1109. 1922. Voluntary deposits can only be lawfully made by the owner of the thing deposited or with his express or tacit consent. Civ. C. 1938. 1928. Voluntary deposits must be proved by a writing. Oral testimony is not received for an amount exceeding one hundred and fifty francs. Civ. C. 1341, 1347, 1924, 1950. 1924. "When a deposit, being for more than one hundred and fifty francs, is not estabhshed by a writing, the person who is attacked as depositary is believed on his declaration, either as to the fact itself of the deposit, or the thing which formed the object thereof, or as to the fact of its restitution. Civ. C. 1357, 1366. 1925. A voluntary deposit can only take place between persons who are capable of contracting. Nevertheless, if a person capable of contracting accepts a deposit made by a person who was incapable, the former is liable for all the obligations of a real depositary, and can be sued by the guardian or administrator of the person who has made the deposit. Civ. C. 1124. OP DEPOSITS AND SEQUESTRATIOK. 431 1926. If tlie deposit has been made by a person having the necessary capacity to another who has not such capacity, the person who has made the deposit is only entitled to maintain an action for the restitution of the thing deposited so long as it exists in the hands of the depositary, or to maintain an action for restitution to the extent of the benefit derived by the latter. Civ. 0. 1312. % 3. Of the Obligations of a Depositary. 1927. A depositary must bestow the same care in watching over the thing which is deposited as he bestows upon the things which belong to him. Civ. C. 1137. 1928. The provisions of the foregoing article shall be applied more strictly: 1. If the depositary has offered himself to receive the deposit ; 2. If he has stipulated a salary for looking after the deposit ; 3. If the deposit has been made solely in the interest of the depositary ; 4. If it has been expressly agreed that the depositary should be answerable for aU kinds of wrongs. 1929. A depositary is not in any case answerable for the accidents resulting from superior force, unless notice has been given to him to return the thing deposited. Civ. C. 1139. 1930. He cannot make use of the thing deposited with- out the express or presumed permission of the depositor. Civ. C. 895, 1881. 1981. He shall not attempt to discover what are the things which have been deposited with him, if they have been entrusted to him in a closed box or under a sealed cover. 432 OP DEPOSITS AND SEQUESTRATION. 1932. The depositary must return the identical thing which he has received. For instance, deposits of sums of money must be returned in the same coins as they have been made, whether in case of increase or of decrease in the value of the same. Civ. C. 1293, 1915, 1933. 1983. A depositary is only bound to return the thing deposited in the condition in which it is at the time of restitution. Damages which do not result from any act of his shall be borne by the depositor. Civ. C. 1245, 1302. 1934. A depositary from whom a thing has been taken away by superior force and who has received the value thereof or something in its place, must return what he has received in exchange for it. Civ. C. 1303. 1985. The heir of the depositary who has sold in good faith the thing which he did not know to be a deposit is only bound to return the price which he has received or to assign his action against the purchaser if he has not received payment thereof. Civ. C. 1380, 1599. 1986. If the thing deposited has produced an income which has been collected by the depositary, he is obliged to return such income. He owes no interest upon the money deposited excepting from the day upon which he has been given notice to return it. Civ. C. 548, 1139. 1937. A depositary must only return the thing deposited to the person who has entrusted it to him or to the person in whose name the deposit has been made or to the one who has been appointed to receive it. Civ. C. 1924, 1939, 1940. 1938. He cannot compel the person who has made the OF DEPOSITS AND SEQUESTEATION. 433 deposit to prove that he was the owner of the thing de- posited. Nevertheless, if he discovers that the thing has been stolen and who is the real owner, he must denounce to the latter the deposit which has been made with him, and demand of him to claim it within a sufficient and fixed time. If the person to whom this notice is given fails to claim the deposit, the depositary is lawfully released by the delivery which he makes thereof to the person from whom he has received it. Civ. C. 1922, 2279. 1939. In case of natural or civil death (6) of the person who has made the deposit, the thing deposited can only be returned to his heir. If he has several heirs it must be returned to each of them according to their share and portion. If the thing deposited is indivisible the heirs must agree among themselves to receive it. Civ. C. 1220. 1940. If the person who has made the deposit has changed status, for instance, if a wife, independent at the time the deposit was made, has since married, and is under the power of her husband ; if a person of fuU age who has made a deposit is interdicted ; in all such cases and others of the same kind the deposit can only be returned to the person who has the administration of the rights and pro- perty of the depositor. Civ. C. 217, 450, 509, 513, 1421, 1428, 1531, 1549, 1925. 1941. If the deposit has been made by a guardian, a husband, or an administrator, in one of such capacities, it can only be returned to the person whom such guardian, husband or administrator represented, if their management or administration is ended. Civ. C. 1937. (6) Ciyil death was abolished by the law of 31st May, 1864. C.N. F F 434 OF DEPOSITS AND SEQUESTRATION. 1942. If the contract of deposit specifies the place where the restitution shall be made, the depositary is obliged to take the thing deposited to such place. If the transporta- tion has caused expense the same shall be paid by the depositor. Civ. C. 1247. 1943. If the contract does not specify the place of resti- tution such restitution shall be made at the place of deposit itself. Civ. C. 1247. 1944. The deposit must be returned to the depositor as soon as he claims it, even if the contract has fixed a special time for the restitution, unless there is an attachment or an injunction in the hands of the depositary stopping the restitu- tion or the removal of the thing deposited. 1945. A depositary who has acted in bad faith is pre- cluded irom the right of assignment. Civ. C 1270. 1946. AH the obligations of the depositary cease if he happens to discover and can prove that he is himseK the owner of the thing deposited. Civ. C. 1300 et s. § 4. Of the Obligations of persons through whom the deposit has been made. 1947. A person who has made a deposit is obliged to repay to the depositary the expenses which the latter has incurred for the preservation of the thing deposited and to make good to him all the losses which he may have sustained owing to the deposit. Civ. C. 1375, 1381, 1890. 1948. A depositary may retain the deposit until fall payment of what is due to him on account of such deposit. OF DEPOSITS AND SEQUESTEATION. 435 ^5. Of Obligatory Deposits. 1949. An obligatory deposit is one which was compulsory owing to some accident, such as a fire, complete destruction, pillage, shipwreck, or other unforeseen events. 1950. Proof by witnesses is allowed in case of an obli- gatory deposit, even if the amount involved exceeds one hundred and fifty francs. Civ. C. 1348, 1924, 1949. 1961. Obligatory deposits are moreover governed by all the rules previously mentioned. 1952. Innkeepers or hotel-keepers are responsible as de- positaries for the effects brought by the traveller who is stopping with them ; a deposit of such kinds of efiects shall be considered as an obligatory deposit. Civ. C. 1782 et s., 1953 et s. 1953. They are responsible for the theft of or injury to the efiects of the traveller, whether the theft has been committed or the injury caused by the servants or employees of the hotel, or by travellers passing through. (Added by law of l^th April, 1889.) This responsibility is limited to one thousand francs for monies and securities or shares to bearer, of whatever nature, which have not been actually deposited in the hands of the innkeepers or hotel-keepers. Civ. C. 1384. 1954. They are not responsible for thefts committed with force and arms or by any other superior force. Civ. C- 1148. F F 2 436 OP DEPOSITS AND SEQUESTRATION. Chap. III. Of Sequestration. § 1. Of Variotis Kinds of Sequestration. 1955. Sequestration is either conventional or judicial. CiT. C. 1956 et s. ^ 2. Of Conventional Sequestration. 1956. Conventional sequestration is a deposit made by one or several persons of a thing in dispute in the hands of a third party who binds himself to return it after the con- troversy is over to the person who shall obtain it by judg- ment. 1957. Sequestration need not be gratuitous. Civ. C. 1917. 1958. When it is gratuitous it is governed by the rules of a deposit properly so called, subject to the differences hereafter mentioned. 1959. Sequestration may apply not only to personal effects but even to real estate. Civ. C..1918. 1960. A depositary of a thing sequestrated cannot be released before the controversy is ended, excepting with the consent of all the interested parties or for a cause which a judgment has declared to be legitimate. § 3. 0/" Sequestration or Judicial Deposit. 1961. Sequestration may be ordered by a Court : 1. In case of personal property of a debtor which has been attached ; OF DEPOSITS AND SEQUESTRATION. 437 2. In case the ownership or possession of real estate or personal property is in dispute between two or more persons ; 3. In case the debtor offers certain things for his release. Civ. 0. 602, 1257 e!!s.,, 1264. 1962. The appointment of a judicial custodian produces reciprocal obligations between the attaching creditor and the custodian. The custodian must bestow upon the thing attached, for its preservation, the same care as a prudent owner. He must produce it to be sold upon a release from the attaching creditor, or must produce it to the party against whom the executions have been issued, in case the attach- ment has been vacated. The obligation of the attaching creditor consists in the payment to the custodian of the salary fixed by law. Civ. C. 596 et s. 1963. A judicial sequestrator shall be either the person as to whom the interested parties have agreed between themselves, or a person appointed by the Court of its own accord. In both cases the person to whom the thing is entrusted is subject to all the obligations resulting from a conventional sequestration. Civ. C. 1956. ( 438 ) Title Twelfth, of contingent contracts. (Passed 10th March, 1804 ; promulgated 20th of same month.) 1964. A contingent contract is a reciprocal agreement of whicli the effects as to the adyantages and losses thereof depend upon an uncertain event, either with respect to all the parties or one or several of them. Such are : Insurance contracts ; Loans on bottomry ; Gaming and betting ; Annuities. The two first are governed by maritime law. Civ. C. 1104, 1133, 1965 et s., 1968 et s. Chap. I. Gaming and Betting. 1965. The law does not grant any action for a gaming debt or for the payment of a bet. Civ. C. 1131, 1133, 1967, 1999. 1966. Games which tend to promote skill in the use of arms, races on foot or on horseback, tennis and other games of the same kind which develop skill and promote physical exercise, are excepted from the foregoing provision. OF CONTmaENT CONTRACTS. 439 Nevertheless, the Tribunal can dismiss the case when the sum appears excessive. 1967. In no case can the loser claim back what he has voluntarily paid, unless there has been fraud, deceit or swindling on the part of the winner. Oiv. C. 6, 1116, 1133, 1965. Chap. II. Of Contkacts of Annuities. § 1. Of the Conditions required for the Validity of the Contract. 1968. An annuity may be granted for a consideration in money, or for an article of personal property of some value, or for real estate. Civ. C. 1909, 1910, 1976, 1977 et s., 2277. 1969. It can also be granted, without consideration, by donation inter vivos, or by wiU. It must then be made in the form provided by law. Civ. C. 931 et s., 967 et s. 1970. In the case of the foregoing article a life annuity can be reduced if it exceeds the portion which the person has the right to dispose of. It is void if it has been made in favour of a person who is incapable of receiving it. Civ. C. 908, 913 et s., 917, 920, 1098. 1971. An annuity may be made either in favour of the person who furnishes the value thereof, or in favour of a third party who only has a right of enjoyment of the same. 440 OF CONTINGENT CONTRACTS. 197S. It can be in favour of one or several persons. Civ. C. 1973. 1973. It can be in favour of a third party, although the price thereof has been famished by another person. In the last case, it is not subject to the rules provided for donations, although it has the character of a gift, except in the cases of reduction and nullity mentioned in article 1970. Civ. C. 1121. 1974. All contracts for a life annuity made in favour of a person who was dead at the time of the making of such contracts are ineffectual. Civ. C. 1104, 1964. 1975. The same rule applies in the case of a contract by which an annuity has been created in favour of a person suffering from an illness from which he has died within twenty days from the date of the contract. 1976. A life annuity can be made at the rate the con- tracting parties choose to fix. Civ. C. 1568, 1582, 1583, 1674, 1907. § 2, Of the Effects of the Contract between the Contracting Parties. 1977. The person in whose favour a life annuity has been created for a consideration can apply for the cancel- lation of the contract if the grantor does not furnish the security stipulated for its fulfilment. Civ. C. 1184. 1978. The non-payment alone of the annuity does not give the right to the person in whose favour it has been created to apply for the repayment of the capital or to re-enter upon the property conveyed by him ; he only has, the right to attach the property of his debtor and to have it. OP CONTINGENT CONTRACTS. 441 sold, and to obtain by judgment or consent that a sufficient sum should be invested out of the proceeds of the same for the payment of the interest. Civ. 0. 1654, 1656, 1912, 1977, 1983, 2093 et s., 2123, 2204 et s. 1979. The grantor cannot exempt himself from the payment of the annuity by offering to return the principal, and by renouncing to claim back the interest paid ; he is bound to pay the interest during the whole life of the person or of the persons in whose favour the annuity has been created, whatever may be the duration of the life of such persons and however burdensome the payment of the annuity may have become. Civ. 0. 1912, 2263. 1980. The annuity is only due to the owner in pro- portion to the number of days he has lived. Nevertheless, if it has been stipulated that it is to be paid in advance, the payment which has been made belongs to the owner from the day it should have been made. Civ. C. 584, 586, 1571. 1981. It may not be stipulated that an annuity cannot be attached, unless it has been created without considera- tion. Civ. C. 1969 et s. 1982. An annuity does not cease upon the cwil death oj the owner ; the payment shall be continued during his natural life (c). 1983. The owner of an annuity can only claim payment thereof by proving his existence or the existence of the person in whose favour it has been created. Civ. C. 1315. (c) Civil death having been abolished by the law of 31st May, 1854, this article has ceased to apply. ( 442 ) Title Thirteenth, of powers op attorney. (Passed 10th March, 1804 ; promtilgated 20th of same month.) Chap. I. Or THE Nature and Fokms of Powees of Attorney. 1984. A commission or warrant of attorney is an instru- ment ty which one person gives to another the power to do something for the principal and in his name. The contract exists by the mere acceptance of the attorney- in-fact. Civ. C. 1108 et s., 1131, 1582, 1589, 1998, 1999. 1985. A power of attorney can be given either by a public instrument or by a writing under private signature, even by letter. It can also be given verbally : but the proof thereof by witnesses is only admitted in accordance with the Title Of Contracts or Conventional Obligations in General. The acceptance of the power may only be tacit, and result froia the acting thereunder of the attorney-in-fact. Civ. C. 1341 et s., 1347, 1353, 1356, 1372, 1383, 1984, 1991, 1992. 1986. A power of attorney is without compensation, unless there is a stipulation to the contrary. Civ. C. 1992. . 1987. It is either special and for one matter or for certain matters only, or general and for aU the business of the principal. OP POWERS OP ATTORNEY. 443 1988. A power of attorney made out in general terms only applies to acts of administration. In case of a conveyance or mortgage or other transaction relating to property, tlie power must be expressly given. Civ. 0. 1319, 1912, 1985. 1987, 1989, 1998. 1989. An attorney-in-fact cannot do anything beyond what is expressed in bis power : the power to compromise does not include tbe power to submit to arbitration. Civ. C. 1985, 1987, 1998. 1990. "Women and emancipated minors can be selected as attorneys-in-fact; but the principal has no cause of action against the attorney-in-fact who is a minor, except in accordance with the general rules relatiag to the obligations of minors, nor against a married woman who has accepted a power without the consent of her husband, except iu accordance with the rules established under the Title Of Marriage Contracts and of the respective Rights of Husband and Wife. Civ. C. 481 e^ «., 1124 et s., 1305 et s., 1312, 1420, 1426. Chap. II. Of the Obligations of Attobneys-in-fact. 1991. An attorney-in-fact is bound to carry out the power, so long as he has charge of acting under it, and he is responsible for the damages which might result from his failure to act. He is also bound to finish a matter commenced at the death of the principal if delay would be prejudicial. Civ. C. 1372 et s., 1984, 1985, 1992. 444 OF POWERS OF ATTORNEY. 1993. An attorney-in-fact is answerable not only in case of fraud, but also for negligence ia bis management. Nevertheless, tbe responsibility in case of negligence is enforced less rigorously against a person who has acted with- out compensation under a power than against one receiving a salary. Civ. C. 1374, 1382, 1991. 1993. Every attorney-in-fact is bound to render an account of his management, and to answer to his principal for everything he has received by virtue of his power, even if what he has received was not due to the principal. Civ. C. 1992. 1994. An attorney-in-fact is answerable for the person he has substituted in his management; 1. When he has not received the power to substitute ; 2. When this power has been conferred without naming tbe person, and when the person selected by him was notoriously unfit or in- solvent. In all cases a principal can proceed directly against the person whom the attorney-in-fact has substituted. Civ. 0. 1384. 1995. WTien there are several attomeys-ia-fact or man- datories appointed by the same instrument, there is no solidarity between them imless it is expressed. Civ. C. 1200, 1202, 1222, 1382. 1996. An attorney-in-fact owes interest on the sums which he has applied to his own use from the time he has made use of them ; and on those remaining in his hands from the time of the demand made upon him. Civ. C. 1139, 2277. 1997. An attorney-in-fact who has given to the person with whom he is dealing in such capacity suf&cient know- OP POWERS OP ATTORNEY. 445 ledge of his powers is not bound to give any guarantee for what lie has done beyond them, unless he has personally consented thereto. Civ. 0. 1989, 1998. Chap. III. Of the Obligations of Principals. 1998. A principal is bound to carry out the engagements contracted by the attorney-in-fact in accordance with the power which he has given him. He is only bound for what may have been done beyond it in case of his express or tacit ratification. Civ. C. 1338, 1984, 1989, 1994, 1999. 1999. A principal must repay to the attorney-in-fact the advances and disbursements made by him in acting under the power, and he must pay him his salary when it has been promised. If the attorney-in-fact cannot be charged with any negligence, the principal cannot refuse to make these re- imbursements and pajmients, even if the matter has not been successful, and he cannot have the amount of his expenses or advances reduced on the ground that they might have been smaUer. Civ. C. 1131, 1183, 1372, 1375, 1589, 1984, 1997, 1998, 2002, 2003. 2000. A principal must also make good the losses which the attorney-in-fact has sustained in consequence of his management if he cannot be charged with imprudence. Civ. C. 1375, 1992. 446 OF POWERS OF ATTORNEY. 2001. Interest on advances made by the attorney-in- fact is due to him by the principal from the time these advances are proved to have been made. Civ. C. 1570, 1996, 2277. S002. "When an attorney-in-fact has been appoiated by several persons for a common business, each one of them is jointly and severally liable towards him for all the con- sequences resulting from the power. Civ. C. 1200 et «., 1999. Chap. IV. Of the Different Ways in vstiich a Power of Attorney expires. 2003. A power of attorney expires by the revocation of the attorney-in-fact ; By his renunciation of the power ; By the natural or civil death {d), the interdiction or the insolvency, either of the principal or of the attomey-ia-fact. Civ. C. 501, 1991. 2004. A principal can revoke his power of attorney whenever he chooses, and compel the attomey-ia-fact, if necessary, to return to him, either the writing under private signature which contains it, or the original of the power in public form, if such original has been delivered, or the certified copy if the original has been kept. Civ. C. 2006. 2005. A revocation of which notice has been given to (d) Oivil death was abolished by the law of 31st Hay, 1854. OP POWERS OP ATTORNEY. 447 the attorney-in-fact alone cannot be set up against third parties who have had dealings with him without knowing of this revocation, but the principal has his remedy against the attorney-in-fact. Civ. C. 1165. 5006. The appointment of a new attorney-in-fact for the same business is equivalent to a revocation of the previous one from the day upon which the latter has been given notice. Civ. C. 2003 et s. 5007. An attorney-in-fact may renounce the power by giving notice of his renunciation to the principal. Nevertheless, if this renunciation is prejudicial to the principal he must be compensated by the attorney-in-fact unless it is impossible for the latter to continue to act under the power without sustaining himself a considerable loss. Civ. 0. 1372 et s., 1382, 1991. 2008. If an attorney-in-fact has no knowledge of the death of the principal or. of one of the other causes which has made the power expire, what he may have done with- out such knowledge is vaUd. Civ. C. 1991, 2009, 2244, 2247. 2009. In the above cases the engagements contracted by the attorney-in-fact shall be carried out with respect to third parties who are in good faith. Civ. C. 2268. 2010. In case of the death of the attorney-in-fact, his heirs must give notice to the principal and attend in the meantime to what is required in the interest of the latter, as circumstances may demand. Civ. C. 1373. ( 448 ) Title Foukteenth. op security. (Passed 14th February, 1804 ; promulgated 24th of same month.) Chap. I. Or THE Nature and Extent of Security. 2011. A person who answers as surety for an obligation undertakes with respect to the creditor to satisfy this obliga- tion if the debtor does not satisfy it himself. Cir. C. 1102, 1105, 1325, 2015, 2025 et s., 2037, 2040 et s. 201S. Security can only be given for an obligation which is valid. One may, nevertheless, answer as surety for an obligation, even if it can be annulled owing to an objection which is purely personal to the debtor, for instance, in case of his minority. Civ. C. 1129, 1130, 1133, 1134, 2036. 2013. The security cannot exceed what is due by the debtor, nor be given under more rigorous conditions. It can be given for a part only of the debt, and under less rigorous conditions. The security which exceeds the debt or which is given under more rigorous conditions is not void : it shall only be cut down to the amount of the principal obHgation. Civ. C. 2015 et s. 2014. A person may become surety without an order 0¥ SECURITY. 449 from the individual for whom he binds himself and even without his knowledge. One may also become surety not only for the principal debtor, but also for the person who has given security for him. Civ. 0. 1120 et s. 2015. Security cannot be presumed ; it must be expressly given, and it cannot be extended beyond the limits within which it has been given. Civ. C. 1202, 1353, 1834. 2016. The security given in an indefinite manner for a principal obligation extends to all the accessories of the debt, even to the expenses connected with the first demand and to those subsequent to the notice given to the surety. Civ. C. 1740, 2025. 2017. The engagement taken by sureties extends to their heirs, with the exception of execution against the person (e), if the engagement was such that the surety was bound by it. Civ. C. 724, 2040. 2018. A debtor who is obliged to give security must furnish a surety who has the capacity to bind himself, who has suf&cient property to answer for the effects of the obliga- tion, and of whom the domicil is within the District of the Eoyal Court {Court of Appeals) where the security is to be given. Civ. C. 2040. 2019. The solvency of a surety is determined solely by the real estate which he owns, except in commercial matters or when the debt is small. Real estate which is in dispute,, or as to which a seizure would be too difficult on account of its remoteness, is not taken into account. Civ. C. 2040, 2185. (e) Execution against the person was abolished in civU and commercial matters by the law of 22nd Jnly, 1867. C.N. G G 450 OF SECURITY. S020. When a surety voluntarily accepted by a creditor or by the Court afterwards becomes insolvent, a new surety shall be furnished. An exception is made to this rule only when the security has been given by virtue of an agreement by which the creditor has insisted upon having a certain person as surety. Chap. II. Of the Effects of Security. § 1. Of the Effects of Security between Creditor and Surety. S021. A surety is only bound towards the creditor to pay him if the debtor fails to do so, and the latter 's pro- perty must previously be seized, unless the surety has renounced the benefit of seizure, or unless he has bound himself jointly and severally with the debtor; in which case the efiiects of his undertaking are regulated by the principles which have been established for debts jointly and severally due. Civ. C. 2042. 80S2. A creditor is only obliged to seize the property of his principal debtor when the surety demands it upon the first proceedings instituted against him. 2023. A surety who demands the seizure must indicate to the creditor the property of the principal debtor, and advance enough money to have the seizure take place. He is not obliged to indicate the property of the principal debtor situated outside of the District of the Eoyal Court {Court of Appeak) of the place where the payment is to OF SECURITY. 451 be effected, nor the property in dispute, nor the property mortgaged for the debt and which is no longer in the posses- sion of the debtor. Civ. C. 2019, 2024, 2170. 2024. Whenever a surety has pointed out the property, as authorized by the foregoing article, and has furnished sufBcient funds for the seizure, the creditor is Uable towards the surety, to the extent of the property pointed out, for the insolvency of the principal debtor which has occurred owing to his failure to institute proceedings. 2025. When several persons have become sureties for the same debtor and the same debt, each one of them is liable for the whole debt. Civ. C. 1200 et s., 2011, 2016, 2033. 2026. Nevertheless, each one of them may demand that the creditor should previously divide his action and reduce it to the part and portion due by each surety, unless they have renounced the right of division. If, at the time one of the sureties has had the divi- sion ordered, some of them were insolvent, such surety is bound in proportion to these insolvencies ; but no claim can be made against him for the insolvencies which have occurred since the division. Civ. C. 2027. 2027. If a creditor has divided his action of his own accord and voluntarily, he must stand by the division, even if there were insolvent sureties previously to the time when he consented thereto. Civ. C. 1210. § 2. 0/" the Effects of Security between Debtor and Surety. 2028. A surety who has paid has a claim against the principal debtor, whether the security has been given with or without the knowledge of the debtor. G G 2 452 OF SECURITY. This claim exists as well for the principal as for the interest and costs : nevertheless, the surety only has a claim for the expenses he has incurred since he has given notice to the principal debtor of the proceedings brought against himself. He also has a claim for damages and interest according to circumstances. Civ. C. 1236, 1251. 2029. A surety who has paid the debt is subrogated to all the rights which the creditor had against the debtor. Civ. C. 1251 et s. 2030. When there were several principal debtors jointly and severally liable for the same debt, the surety who has answered for aU of them has against each one of them a claim for the repayment of everything he has paid. Civ. C. 1251, 2023, 2029, 2037. 2031. A surety who pays the first time has no claim against the principal debtor who has paid the second time, when the latter had received no notice of the payment made by the former ; but the surety has a claim against the creditor for repayment. When a surety has paid without having been sued and without giving notice to the principal debtor, he has no claim against such debtor in case the latter should have had the means to defeat the claim at the time of payment ; but the surety has a claim against the creditor for repay- ment. Civ. C. 1166, 1377 et s., 2028 et s. 2032. A surety, even before he is paid, can proceed against the debtor to be indemnified : 1. When such surety has been sued in court for payment ; 2. When the debtor has become a bankrupt, or is in- solvent ; 3. When the debtor has undertaken to give him a release at the end of a certain time ; OF SECURITY. 453 4. When the debt has hecome due by the expiration of the time for which it had been contracted ; 5. At the end of ten years, when no time has been specified for the expiration of the principal obligation, unless the same is of such a nature as not to expire before a fixed time, such as a guardianship. Civ. C. 1154, 1185, 1188. § 3. 0/ the Effects of Security between Sureties. 2033. When several persons have become sureties for the same debtor upon the same debt, the surety who has paid the debt has a claim against aU the other sureties for the share and portion of each of them. But this claim only exists when the surety has paid in one of the cases mentioned in the foregoing article. Civ. C. 1251, 1375. Chap. III. Of the Expiration of Security. 2034. The obligation resulting from the giving of security expires by the same causes as other obligations. Civ. C. 1234 et s. 2035. The merger which takes place in the person of the principal debtor and of the surety when the one becomes the heir of the other, does not put an end to the claim of the creditor against the person who has given security for the surety. Civ. C. 1300 et s. 2036. A surety may set up against the creditor all the 454 OF SECUEITY. exceptions which appertain to the principal debtor and are inherent to the debt. But he cannot set up the exceptions which are purely personal to the debtor. Cir. 0. 1236, 1261 et s., 1281, 1287, 1294, 1301, 1351, 1365, 2012, 2219, 2262, 2277. 2037. A surety is released when subrogation to the rights, mortgages and privileges of the creditor can no longer take place in favour of the surety owing to an act of such creditor. Civ. 0. 1260, 1252, 1382. 2038. The voluntary acceptance, by a creditor, of real estate or of a thing whatsoever it may be in payment of the principal debt, releases the surety, even if the creditor should afterwards be ejected therefrom. Civ. C. 1271. 2039. A simple extension granted by a creditor to the principal debtor does not release the surety, who may in such case proceed against the debtor to compel him to pay. Civ. C. 2032. Chap. IV. Of Legal and Judicial Security. 2040. Whenever a person is bound by law or by judg- ment to furnish security, the security offered must fulfil the conditions specified in articles 2018 and 2019. In case of judicial security the surety must also be amenable to execution against the person. Civ. C. 16, 120, 123, 124, 601, 626, 711, 807, 1518, 1653, 2185. OF SECURITY. 455 2041. A person who cannot find a surety can give instead a pledge as sufficient security. Civ. C. 2071. 2042. A judicial surety cannot ask that the principal debtor be seized. Civ. C. 2021. 2043. A person who has merely given security for a judicial surety cannot ask that the principal debtor and the surety be seized. ( 456 ) Title Fifteenth, op compeomises. (Passed 20th Marcli, 1804 ; promulgated 30th of same month.) 8044. A compromise is a contract by which the parties put an end to a controversy which has arisen or prevent a controversy about to arise. This contract must be drawn up in writing. Civ. C. 888, 1134, 1341, 1357, 2048, 2049, 2052. 2045. In order to compromise, one must have the right to dispose of the things included in the compromise. A guardian can only compromise for a minor or an interdicted person in accordance with article 467 of the Title Of Minority, of Cruardianship, and of Emancipation, and he can only com- promise with a minor who has become of age with respect to the guardianship accounts in accordance with article 472 of the same Title. Districts and public establishments can only compromise with the express consent of the King. Civ. C. 6, 835, 1123 et s., 1128, 1131, 1133, 2046, 2052. 2046. A person can compromise as to the civil interests resulting from a misdemeanour. A compromise does not stop the action brought by the Public Prosecutor. 2047. A person may add to a compromise a stipulation OF COMPROMISES. 457 for a penal clause against the party who fails to carry it out. Civ. C. 1226 et s. 2048. Compromises are confined to their object: the renunciation therein contained of all rights, actions and claims only extends to what relates to the controversy which has given rise thereto. Civ. C. 1163. 2049. Compromises only settle the controversies therein included, whether the parties have expressed their intention in special or general terms, or whether such intention appears as a necessary consequence of what is expressed. Civ. C. 1156, 1163. 2050. If a person who has made a compromise as to a right which belonged to him individually acquires there- after a similar right through another person he is not bound by the compromise previously made with respect to the right which he has since acquired. 2051. A compromise made by one of the interested parties does not bind the others and cannot be set up against them. Civ. C. 1165, 2037. 2052. Compromises have, between the parties, the efiiect of a final judgment. They cannot be attacked on account of an error of law, nor on account of injury. Civ. C. 888, 1110, 1118, 1131, 1350, 1351, 1356, 2044, 2048. 2053. Nevertheless, a compromise can be set aside when there is an error as to the person or as to the matter in dispute. It can also be set aside in all cases in which there is fraud or duress. Civ. C. 1099, 1131, 1341. 2054. An action to set aside a compromise also lies 458 OF COMPROMISES. when it has taken place in consequence of an instrument which was void, unless the parties have expressly taken into account the cause of avoidance. Civ. C. 1110, 1338. 2055. A compromise based on papers which have since been declared to be forgeries is wholly void. Civ. C. 1131. 2056. A compromise as to a suit which has come to an end owing to a final judgment having been rendered, of which the parties or one of them had no knowledge, is void. If the judgment which was unknown to the parties was subject to appeal, the compromise shall be vaHd. Civ. C. 1351. 2057. "When parties have made a general compromise applying to all matters standing between them, the instru- ments which were then unknown to them or which have been subsequently discovered do not constitute a cause for rescission, unless they have been withheld through the act of one of the parties. But the compromise shall be void if it only referred to a thing to which the newly-discovered documents show that one of the parties had no right. 2058. Errors of calculation in a compromise shall be corrected. Civ. 0. 2053. ( 459 ) Title Sixteenth, of execution against the person in civil MATTERS (/). (Passed 13th February, 1804 ; promulgated 23rd of same month.) 2059. Execution against the person takes place in civil matters in case of stellionate. Stellionate occurs : When a person sells or mortgages real estate which he knows does not belong to him; When a person represents, as being unencumbered, property which is mortgaged or declares that the mortgages are of less amount than those encumbering the property. 2060. Execution against the person takes place also : 1. In case of a necessary deposit ; 2. In case of restitution for abandonment, ordered by the Court, of an estate of which the owner has been deprived by violence; for the return of revenues collected during illegal possession, and for the payment of damages awarded to the •owner ,- 3. For restitution of funds placed in the hands of public •officers appointed therefor ; 4. For the production of things deposited with receivers, commissioners, or other custodians ; 5. Against judicial sureties and against sureties of persons {/) Execution against the person in civil and commercial matters and against foreigners was abolished by the law of the 22nd July, 1867. Midi 460 OP EXECUTION AGAINST THE PEESON. subject to execution against the person, when they have sub- mitted to such execution ; 6. Against all public officers, for the production of the originals kept by them, when it is ordered; 7. Against notaries, solicitors, and sheriffs, for the restitu- tion of documents confided to them and of funds collected by them for clients in their professional capacity, 8061. Those who have been ordered by a final judgment in an action for trover to vacate an estate and who refuse to obey, may be compelled so to do by execution against the person, ordered by a second judgment fifteen days after service of the first judgment upon the person or at his domieil. If the property or estate is at a distance of more than jwe myriameters from the domieil of the person against whom the judgment has been rendered, one day shall be added to the period of fifteen days for each five myriameters. 2062. Execution against the person cannot be ordered against farmers for the payment of rents of rural property, unless it has been expressly stipulated in the lease. Nevertheless, execution against the person can be issued against farmers and settlers paying in kind if they fail at the end of the lease to produce the cattle leased, the seeds, and the agricultural implements which have been entrusted to t/iem,. unless they prove that they are not accountable for the loss oj these things. 2063. Outside of the cases mentioned in the foregoing articles or which might come under a new special law, Judges are not allowed to order execution against the person; and notaries and clerks of Courts shall not be allowed to receive instruments in which the same has been stipulated, and French people shall not be allowed to execute such instruments, even if they are executed in a foreign country, and otherwise everything so done shall be void, together with costs, damages, and interest. OF EXECUTION AGAINST THE PERSON. 461 3064. Even in the cases above set forth no execution against the person shall he ordered against minors. 2065. Such execution cannot he ordered for a sum below three hundred francs. 2066. It shall not be ordered against persons over seventy years of age, nor against married or unmarried women, except in case of stellionate. It is sufficient that the seventieth year should have com- menced to be entitled to the favour granted to septuagenarians. Execution against the person for stellionate shall only be issued against married women during marriage when there is a separation of property or when they have property of which they have reserved to themselves the free administration and on account of engagements relating to such property. Womsn married with community of property who have bound themselves jointly and severally ivith tlieir husbands cannot be considered guilty of stellionate on account of such agreements. 2067. Execution against the person, even in cases in which it is authorized by law, can only be issued by virtue of a judgment. 2068. An appeal does not stay an execution against the person ordered by a judgment, upon which execution can be issued in the meantime by giving security. 2069. Issuing execution against the person does not prevent or stop the proceedings or execution against the pro- perty. 2070. No changes are made in the special laics allowing execution against the person in commercial matters, nor in the laws relating to misdemeanours, nor in those relating to the administration of public funds. ( 462 ) Title Seventeenth. of pledges. (Passed 16th March, 1804 ; promulgated 26th of same month.) 2071. A pledge is an agreement by which a debtor bands over to bis creditor a tbing to secure a debt. Civ. C. 1101, 1286, 1582, 1584, 1915 et s., 2041, 2078. 2073. A pledge of personal property is called apami; A pledge of real estate is called antichresis. Civ. C. 2073, 2085. Chap. I. Of Pawns. 2073. A pawn confers upon the creditor tbe right to cause himself to be paid out of the tbing pawned by way of privilege and in preference to other creditors. Civ. C. 2079, 2095, 2102—2. 2074. This privilege only exists if there is an instru- ment, in public form or under private signature, duly registered, containing a statement of the sum due, and also the kind and nature of tbe things pawned or a list annexed of their quality, weight, and measure. OP PLEDGES. 463 However, the instrument neeS only be reduced to writing and registered in case of a matter exceeding the value of one hundred and fifty francs. Civ. C. 1317, 1325, 1341. 2075. The privilege mentioned in the foregoing article only applies to incorporeal personal property, such as claims to personal property, if a public instrument or one under private signature has been made, likewise registered, and which has been served upon the debtor of the claim pledged. Civ. C. 1317, 1325, 1690, 2074. 3076. In all cases the privilege with respect to the pawn only continues if the pawn has been placed and remains in the possession of the creditor or of a third party accepted by the parties. Civ. C. 1286, 1606 et s., 1690, 2075. 2077. A pawn may be given by a third party for the debtor. Civ. C. 1119 et s., 2014, 2090. 2078. A creditor cannot, in case of non-payment, dis- pose of the pawn ; but he must have the Courts order that he shall retain the pawn as payment and to the extent of its value, according to an appraisal made by experts, or that it shall be sold at auction. All covenants allowing a creditor to appropriate the pawn, or to dispose of it without complying with the formalities above set forth, shall be void. Civ. C. 6, 1133, 2087. 2079. Until the debtor has been deprived of the pro- perty, if this takes place, he remains the owner of the pawn, which is only a deposit in the hands of the creditor to secure the latter's privilege. Civ. C. 2073, 2088. 2080. A creditor is answerable for the loss of or injury 464 OF PLEDGES. to the pawn resulting from his negligence, according to the rules set forth in the Title Of Contracts or Conventional Ohligations in General. On the other hand, the dehtor must take into account the necessary and useful expenses which the creditor has incurred for the preservation of the pawn. Civ. C. 1137, 1302 et s., 2079. 3081. In case of a claim given as a pledge and bearing interest, the creditor shall deduct such interest from the interest which may be due. If the debt which the claim has been pledged to secure does not bear interest itself, the interest shall be deducted from the capital of the claim. Civ. C. 1254. 2082. A debtor cannot demand that the person holding the pawn should return it, unless the latter makes an improper use of it, until the principal, interest and costs which the pawn has been given to secure have been entirely paid off. If another debt should exist on the part of the same debtor towards the same creditor, which had originated subsequently to the giving of the pledge and which matures before the payment of the first debt, the creditor is no^ bound to dispossess himself of the pawn before he has been paid in full for both debts, even if no stipulation has been made to apply the pawn to the payment of the second debt. Civ. C. 1948. 2083. A pawn cannot be divided, notwithstanding the divisibility of the debt, between the heirs of the debtor or those of the creditor. The heir of the debtor who has paid his portion of the debt cannot ask for the return of his share of the pawn, so long as the debt has not been fully paid off. On the other hand, the heir of the creditor who has OF PLEDGES. 465 received Hs portion of the debt cannot return the pawn to the detriment of those of his co-heirs who have not been paid. Civ. C. 1218, 1222. 2084. The foregoing provisions do not apply to commer- cial matters, nor to pawn establishments duly authorized, and as to which the laws and regulations relating to them shall be followed. Chap. II. Of Antichresis. 2085. Antichresis can only be created by virtue of a writing. By such an agreement a creditor only acquires the right to coUect the revenues of the real estate on condition of applying them annually to the payment of the interest, if any is due to him, and thereafter to the payment of the capital of his claim. Civ. C. 2089. 2086. A creditor is bound to pay the taxes and annual charges upon the real estate which he holds owing to an antichresis, unless something different has been stipulated. He must also keep the property in order and undertake the useful and necessary repairs, for which he can deduct from the revenues all the expenses relating to all these various things, and otherwise he shaU be liable to damages. Civ. 0. 2080. 2087. A debtor cannot claim the enjoyment of real estate which he has hypothecated by way of antichresis, until the debt has been fully paid off. C.N. H H 466 OF PLEDGES. But a creditor who wishes to exempt himself from the obligations mentioned in the foregoing article can always compel the debtor to take back the enjoyment of his pro- perty, unless he has renounced this right. Civ. C. 2082. 2088. A creditor does not become the owner of the real estate by the mere failure to pay at the time agreed upon ; any clause to the contrary is void : in such case he can resort to legal measures to have his debtor dispossessed. Civ. C. 2078. 2089. "When the parties have stipulated that the revenues shall make. up for the interest, either wholly or to a certain extent, this covenant shall be carried out in the same way as any other which is not prohibited by law. Civ. C. 1289 et s., 1907, 1976. 2090. The provisions of articles 2077 and 2083 apply to antichresis as well as to pawns. 2091. Nothing enacted in the present chapter shall affect the rights which third parties might have to the real estate hypothecated by way of antichresis. If a creditor holding by virtue of such a title has a privi- lege or mortgage upon the estate, lawfully existing and preserved, he can set them up as any other creditor, in their order. Civ. C. 2085, 2087, 2166. ( ^^'J ) Title Eighteenth. op peivileges and mortgages. (Passed 19th March, 1804 ; promulgated 29th of same month.) Chap. I. General Provisions. S092. Whoever has personally bound himself is obliged to carry out his engagements out of all his personal property and real estate, present or future. Civ. C. 2204. 2093. The property of the debtor is the common pledge of his creditors, and the proceeds thereof are distributed among them pro rata, unless legitimate causes of preference exist among the creditors. Civ. C. 2092, 2218. S094. The legitimate causes of preference are privileges and mortgages. Civ. C. 2095 et s., 2114 et s. Chap. II. Of Privileges. 2095. A privilege is the right which the nature of the claim gives to a creditor to be preferred to other creditors, even to mortgagees. Civ. 0. 2103, 2106, 2109, 2166. H H 2 468 OF PRIVILEGES AND MORTGAGES. S096. Preferences are established among privileged creditors by the various kinds of privileges. Civ. C. 2101 et s., 2105. 2097. Privileged creditors of the same rank are paid pro rata. 5098. Privileges in favour of the rights of the Royal (Public) Treasury, and the order in which they come, are regulated by the laws applying thereto. The Eoyal {PubMc) Treasury cannot, however, obtain privileges to the detriment of rights previously acquired by third parties. 5099. Privileges can apply to personal property or to real estate. § 1. Of Privileges relating to Personal Property. 2100. Privileges are either general or special to certain articles of personal property. Sub-sect. 1. 0/ General Privileges relating to Personal Property. 2101. Privileged claims on all personal property generally are those hereinafter set forth, and can be asserted in the following order. 1. Court expenses ; 2. Funeral expenses ; 3. [Amended by law of BOth November, 1892.) All expenses relating to the last illness, pro rata among those to whom they are due, whatever may have been its termi- nation ; 4. The wages of servants for the year elapsed and what is due for the current year ; OF PRIVILEGES AND MORTGAGES. 469 5. Supplies of provisions furnished to tlie debtor or his family, viz. : — during the last six months by retail dealers, such as bakers, butchers and others ; and during the last year by boarding-house keepers and wholesale dealers. Oiv. C. 810, 1250, 2098, 2104, 2271, 2272. Sub-sect. 2. Of Prwileges relating to certain articles of Personal Property. 2102. The privileged claims on certain articles of personal property are : 1. The rents and hire of real estate on the proceeds of the crop of the year, and of everything contained in the house or the farm let, and of everything which is used for the cultivation of the farm ; viz. : For everything that has fallen due and for everything that may become due if the leases are made in the public form, or, if made under private signature, they have a positive date, and in both those cases the other creditors have the right to sublet the house or farm during the remainder of the lease and to apply such rents to pay themselves, provided, however, they pay the landlord everything that may stUl be due to him. And in the absence of leases in the public form or under private signature without having a positive date, then during one year from the expiration of the current year ; The same privilege exists for tenants' repairs, and for everything relating to the carrying out of the lease ; Nevertheless, the sums due for seeds, or for the expenses of the year's crop, are paid to the owner out of the proceeds of the crop, and those due for implements out of the proceeds of such implements, in both cases by way of preference. The owner can attach the furniture contained in his house or farm when it has been removed without his consent, and he retains his privilege on it, provided he has made his claim, viz. : within forty days in the case of movables 470 OF PEIVILEGES AND MORTGAGES. contained in the farm, and within fifteen days for furniture contained in a house ; 2. Claims against the pledge which the creditor holds ; 3. Expenses incurred to keep a thing in repair ; 4. The price of personal property not paid for, if it is still in the possession of the debtor, whether he has bought on credit or for cash ; If the sale has been made for cash, the vendor can even claim such things, so long as they are in the possession of the purchaser, and prevent a re-sale if the claim has been made within eight days from the delivery and the things are in the same condition in which they were delivered ; The vendor's privilege, however, can only be enforced after the one belonging to the owner of the house or farm, unless it is proved that the owner knew that the furniture and other articles contained in the house or farm did not belong to the tenant ; No change is made in the laws and customs of trade relating to claims ; 5. Board furnished by an innkeeper, on the effects of the traveller which have been brought into his inn ; 6. Expenses and incidental expenses for carriage on the thing carried ; 7. Claims resulting from misappropriation or breach of trust committed by public officers in fulfilling their duties, on the amount given by them as security, and on the interest which may be due thereon. Civ. C. 529, 535, 570, 1184, 1188, 1317, 1322, 1690, 1741, 1754, 2073, 2118. § 2. Of Privileges relating to real Estate. 2103. Preferred creditors as to real estate are : 1. Vendors, as to real estate sold, for the payment of the price thereof ; If there are several successive sales, for which the price OF PRIVILEGES AND MORTGAGES. 471 is wholly or partly due, tlie first vendor is preferred to the second, the second to the third, and so on ; 2. Those who have snppKed the money for the purchase of real estate, provided it is expressly stated in the instru- ment by which the loan is made that the sum was intended for that purpose, and in the vendor's receipt that the pay- ment was made out of the money borrowed ; 3. Co-heirs, as to the real estate of the succession, to secure the divisions made among them, the balance due on the shares and the reversion ; 4. Architects, contractors, masons, and other workmen employed to put up, reconstruct, or repair buildings, canals, or other works whatsoever, provided, nevertheless, an official report has been previously drawn up by an expert appointed of its own accord by the Tribunal of First Instance of the District in which the buildings are situated, show- ing the condition of the premises with respect to the work which the owner declares he has the intention of undertaking, and provided the works have been accepted within six months at the most from their completion by an expert also appointed by the Coiort, of its own accord ; But the amount of the privilege cannot exceed the amount allowed by the second official report, and it is confined to the increase in value at the time of the conveyance of the real estate, and resulting from the work which has been under- taken; 5. Those who have loaned the money to pay or reimburse the workmen have the same privilege, provided the use made of the money is officially shown by the instrument estabhshing the loan and by the receipt of the workmen, as has been above stated for those who have loaned money for the purchase of real estate. Civ. C. 578, 617, 883, 1250, 1659, 1673, 1689, 1707, 1792, 1798, 2011, 2095, 2108, 2110, 2134, 2175, 2270. 472 OF PRIVILEGES AND MORTGAGES. § 3. Of Privileges relating to Personal Property and Real Estate. 3104. The privileges whicli extend over personal property and real estate are tliose set fortli in article 2101. 3105. When, in the absence of personal property, the privileges referred to in the foregoing article are brought forward to be satisfied out of the proceeds of real estate at the same time as preferred creditors of such real estate, the payments are made in the following order : 1. Court expenses and others mentioned in article 2101 ; 2. The claims mentioned in article 2103. § 4. How Privileges are maintained. 3106. Privileges relating to real estate do not produce any effect among creditors unless they have been made public by being inscribed on the registers of the Eegistrar of Mortgages in the manner provided by law, and from the time they have been so inscribed, with the following exceptions only. Civ. C. 2146. 2107. Are exempt from the necessity of being inscribed the claims mentioned in article 2101. 2108. A vendor who has a privilege retains it by the transcription of the deed conveying the property to the purchaser, and which shows that the whole or part of the price is due to him ; for that purpose the transcription of the deed made by the purchaser is equivalent to an inscrip- tion by the vendor or the lender who has furnished the money paid, and who is subrogated to the rights of the vendor in the same deed: nevertheless, the Registrar of Mortgages is bound, under penalty of damages towards OP PRIVILEGES AND MORTGAGES. 473 third parties, to enter, of his own accord on the register, the claims residting from the deed transferring the property, as well in favour of the vendor as in favour of the lenders, who may also have the deed of sale transcribed, if it has not already been transcribed, for the purpose of secur- ing the inscription of what is due on the price. Civ. 0. 1654 et s., 2196 et s. 2109. A co-heir or co-parcener retains his privilege over the property forming each share, or over the property publicly sold, for the balance of his share or his reversions, or for the proceeds of the auction sale, by the inscription made by him within sixty days from the date of the deed of division, or of the public sale : during that time no mortgage can be granted on the property, subject to the claim for a balance, or sold at auction to the detriment of the creditor entitled to such balance or to the proceeds. Civ. C. 466, 888, 889, 1338, 2103, 2108, 2113, 2205. 2110. Architects, contractors, masons, and other work- men employed to put up, reconstruct, or repair buildings, canals, or other works, and those who, for the purpose of paying and reimbursing them, have loaned money of which the use is established, retain their privilege from the date of the inscription of the first official report by the double inscription made, first, of the official report showing the condition of the premises ; second, of the official report of acceptance. Civ. C. 2103—4, 2106, 2113, 2146. 2111. Creditors and legatees who ask for the separation of the estate of the decedent in accordance with article 878 of the Title Of Successions retain against the creditors of the heirs or the representatives of the decedent their privilege on the real estate of the succession by the inscription made respecting each estate, within six months from the opening of the succession. 474 OF PEIVILEGES ANB MORTGAGES. Before the expiration of that period no valid mortgage can be granted on such estates by the heirs or representa- tives to the detriment of these creditors or legatees. Civ. C. 878, 880 et s., 2146. 2112. The assignees of these various privileged claims enjoy the same rights as the assignors in their place and stead. Civ. C. 1250, 1690, 2096. 2113. All privileged claims which are subject to the formality of inscription, and as to which the requirements above set forth to maintain the privilege have not been compHed with, do not cease, nevertheless, to be mortgages ; but the mortgage, with respect to third parties, only dajtes from the time of such inscriptions which shall be made, as is hereafter explained. Civ. C. 2134, 2154. Chap. III. Of Mortgages. 2114. A mortgage is a real right to real estate subject thereto, for the satisfaction of an obligation. By its nature it is indivisible, and remains as a whole on all the real estate subject thereto, and on each piece of such property and every portion thereof. It follows the property into whatever hands it passes. Civ. C. 1149, 1188, 1244, 1912, 2093, 2094, 2119, 2122, 2161, 2166, 2180. 2115. A mortgage only exists in the cases and in the manner authorized by law. OP PRIVILEGES AND MORTGAGES. 475 S116. A mortgage is either legal or judicial or conTen- tional. 2117. Legal mortgages are tliose resulting from the law. Judicial mortgages are those resulting from judgments or judicial acts. Conventional mortgages are those resulting from agree- ments and from the special provisions of deeds and con- tracts. Civ. C. 2121, 2123, 2124. 2118. The following property only can be mortgaged : 1. Real estate in trade {g) and its accessories considered as real estate ; 2. The usufruct of the same property and its accessories during the time of its duration. Civ. C. 525 et s., 578, 2125. 2119. Personal property cannot be subject to a mort- gage. Civ. C. 522, 528, 529. 2120. No changes are made by the present Code in the provisions of maritime laws relating to ships and sea vessels. §1.0/' Legal Mortgages. 2121. The rights and claims to which a legal mortgage is attached are : Those of married women, on the property of their hus- bands ; Those of minors and interdicted persons, on the property of their guardians ; Those of the State, of Districts, and of public establish- es') This means all real estate of private individuals generally which is susceptible of being disposed of, in contra-distinction to property of the State. 476 OF PRIVILEGES AND MORTGAGES. ments, on the property of collectors and administrators who are accountable. Civ. C. 11, 171, 194, 389, 469, 475, 509, 894, 1017, 1083, 1092, 1093, 1251, 1428, 1476, 1549, 1551, 1565, 1570, 2098, 2127, 2136, 2180. 21SS. A creditor who has a legal mortgage can enforce his right upon all the real estate belonging to his debtor, and upon the real estate which may come to him in the future, subject to the restrictions hereinafter contained. Civ. C. 883, 1422, 1423, 1446, 1471, 1845 et s., 1852, 2121, 2135, 2161. %2. Of Judicial Mortgages. 2123. A judicial mortgage results from judgments either contested or by default, final or provisional, in favour of those who have obtained them. It also results from acknowledgments or verifications made in the judgment of signatures affixed to an instru- ment under private signature containing an obligation. It can be enforced upon the real estate of the debtor and such as he may afterwards acquire, with the restrictions hereafter mentioned. Decisions of arbitrators only carry with them a mortgage when the judicial order for execution is affixed to them. Neither can a mortgage result from judgments rendered in foreign countries, unless they have been declared to be executory by a French Tribunal, without prejudice to the provisions to the contrary which may exist in political laws or in treaties. Civ. C. 307, 1350, 1351, 2114, 2124, 2128, 2148, 2160, 2168. § 3. 0/" Conventional Mortgages. 2124. Conventional mortgages can only be granted by those who have the capacity of conveying the real estate which they subject to them. Civ. C. 217, 457, 513, 1124. OP PRIVILEGES AND MORTGAGES. 477 2126. Those who only have over the real estate a right depending upon a condition, or revocable in certain cases, or which may be cancelled, can merely grant a mortgage sub- ject to the same condition or to the same cancellation. Civ. C. 1181, 1183, 1304, 1674. 2126. The property of minors, of interdicted persons, and of absentees, so long as the possession thereof has been temporarily conferred, can only be mortgaged for the causes and in the manner established by law or by virtue of judgments. Civ. C. 217, 457. 2127. A conventional mortgage can only be granted by deed executed in the public form in the presence of two notaries or of one notary and two witnesses. Civ. C. 873, 1317 et s., 1985, 1988, 2129. 2128. Contracts entered into in a foreign country do not establish a mortgage on property in France, unless there are provisions contrary to this principle in the political laws or in the treaties. 2129. Conventional mortgages are only valid if the public instrument giving existence to the claim or a public instrument executed subsequently states in specific terms the nature and the location of each piece of real estate actually belonging to the debtor and on which he grants the mortgage for the claim. All the property which he presently owns can be made specifically subject to the mortgage. Future property cannot be mortgaged. Civ. C. 2130, 2418. 2130. Nevertheless, if the present and unencumbered property of the debtor is insufiicient to secure the claim, he may, by mentioning this insufficiency, consent that aU the 478 OF PEIVILEGES AND MORTGAGES. property whicli he may afterwards acquire shall become subject thereto as the acquisitions take place. Civ. C. 2129, 2148, 2161. 2131. Likewise, if the present piece or pieces of pro- perty subject to the mortgage has or have been destroyed or been damaged, so that it or they have become insufficient to secure the creditor, he may either proceed at once to obtain payment or ask for an additional mortgage. Civ, C. 1118, 1912. 3132. A conventional mortgage is only valid if the amount for which it is granted is settled and fixed by deed : if the claim resulting from the obligation is conditional as to its existence or unsettled as to its amount, the creditor can only ask for the inscription which is hereafter referred to, to the extent of the estimated value expressly declared by him, and which the debtor shall have the right to have reduced if there is occasion therefor. Civ. C. 1108, 1130, 1173, 1179, 1875, 2114, 2115, 2125, 2148, 2163. 2133. A mortgage granted extends to all the improve- ments made in the property mortgaged. Civ. C. 517 et s., 555, 2175. § 4. 0/ the Hank of Mortgages with respect to each other. 2134. A mortgage, whether legal, judicial, or conven- tional, only ranks among creditors from the day of the in- scription which the creditor has caused to be made on the registers of the Registrar in the form and manner directed by law, with the exceptions mentioned in the following article. Civ. C. 1251, 2118, 2114, 2122, 2146, 2166. 2135. A mortgage exists independently of any inscrip- tion: OF PRIVILEGES AND MORTGAGES. 479 1. In favour of minors or interdicted persons, on the real estate belonging to their guardian, on account of his administration, from the day of the acceptance of the guardianship ; 2. In favour of married women, for their dowries and marriage settlements, on the real estate of their hushand, from the day of the marriage. The wife only has a mortgage for the amounts forming part of her dowry and those coming from successions falling to her, or from donations made to her during marriage, from the time of the opening of the successions or from the day when the donations have taken effect. She only has a mortgage for the payment of debts which she has contracted with her husband or for the reinvest- ment of her individual property which has been conveyed, from the day she has bound herself or from the day of the sale. In no case shall the provisions of the present article affect the rights of third parties acquired previously to the publication of the present Title. Civ. C. 469, 470, 475, 942, 1250, 1328, 1431, 1570, 2121, 2123, 2134, 2139, 2144, 2148, 2153, 2154, 2157, 2195. 2136. Nevertheless, husbands and guardians are bound to make public the mortgages which encumber their property, and for that purpose to cause, of their own accord, the inscriptions on the real estate belonging to them or which may thereafter belong to them to be made without delay, at the ofGlces established for that purpose. Husbands and guardians who, having failed to cause the inscriptions ordered in the present article to be made, should consent or allow privileges or mortgages to take effect on their real estate without expressly declaring that the said property was subject to the legal mortgage of a married woman or of minors, shall be considered guilty of stellionate, 480 OF PRIVILEGES AND MORTGAGES. and as such amenable to execution against the person (/?). Civ. C. 2159. 2137. Assistant guardians are bound, under their per- sonal responsibility and under penalty of damages, to see that the inscriptions on the property of the guardian on account of his administration are taken without delay, and even to cause the said inscriptions to be made. Civ. C. 2142, 2194 et s. 2138. If the husbands, guardians, and assistant-guardians have failed to cause the inscriptions ordered by the fore- going articles to be made, the King's Attorney {Republic's Attorney) of the Tribunal of First Instance of the domicil of the husbands and guardians, or of the place where the property is located, shall have them made. Civ. C 2193, 2194. 2139. Relatives, either of the husband or of the wife, and those of minors, or in default of relatives, their friends, may cause the said inscriptions to be made : the wife and the minors can also have them made. Civ. C. 2194 et s. 2140. When parties of fall age have covenanted in a marriage contract that an inscription shall only be taken on one or more pieces of real estate of the husband, the real estate which is not mentioned as being subject to the inscription shall remain free and unencumbered by mort- gage for the wife's dowry and for her claims and marriage settlement. It is not allowed to covenant that no inscription shaU be taken. Civ. C. 2144. 2141. The same ride shall apply to the real estate of the (h) Execution against the person was abolished in commercial and civil matters and against foreigners by the law of 22nd of July, 1867. OF PRIVILEGES AND MORTGAGES. 481 guardian when the relatives have decided, in a family- council, that an inscription should only he taken on certain pieces of real estate. Civ. 0. 407. 314S. In the cases mentioned in the two foregoing articles, the husband, the guardian and the assistant- guardian are only bound to cause the inscription to he made on the real estate mentioned. S143. "When a mortgage has not been limited by the instrument appointing the guardian, he may, in case a general mortgage on his real estate should manifestly ex- ceed what would be sufficient security for his administration, apply to have this mortgage reduced to the real estate •offering sufficient security to fuUy protect the minor. The application shall be made against the assistant- guardian, and the family must have previously expressed its opinion. Civ. C. 420, 2162. 2144. The husband may, likewise, with the consent of his wife, and after having taken the advice of her four nearest relatives, called together in a family meeting, apply io have the general mortgage covering all his real estate by reason of the dowry of the wife, of her claims and marriage •settlements, reduced to the real estate sufficient to secure the entire rights of the wife. Civ. C. 1549, 1554, 2145, ^157, 2162. S145. Judgments at the suits of husbands and guardians shall only be rendered after hearing the King's Attorney {Republic's Attorney) and he defending. If the Tribunal orders that the mortgage be reduced to certain pieces of real estate, the inscriptions made on all the others shall be cancelled. Civ. C. 2144, 2156. C.N. I I 482 OP PRIVILEGES AND MORTGAaES. Chap. IV. Of the Mode of Inscription of Privileges and Mortgages. 2146. Inscriptions are made at the office of the Registrar of Mortgages in whose district the property subject to the privileges or mortgages is situated. They do not produce any effect if they are not taken within the period during which the acts performed previously to the beginning of the bankruptcy are declared to be void. The same rule applies among creditors of a succession, if the inscription has only been taken out by one of them since the opening of the succession and if the succession has only been accepted under benefit of inventory. Civ. C. 797, 2106. 2147. All creditors whose inscriptions have been made on the same day come in pro rata for a mortgage of the same date, without distinction between an inscription made in the forenoon and one made in the afternoon, even when this difference has been noted by the Registrar. Civ. C. 2200. 2148. To effect an inscription, a creditor presents, either himself or through a third party, to the Registrar of Mort- gages, the original instrument in public form or an official certified copy of the judgment or instrument conferring the privilege or mortgage. He annexes thereto two statements on stamped paper, of which one can be written out on the certified copy of the instrument ; they contain : 1. The name, first name, domicU of the creditor ; his occupation, if he has one, and an election of domicil made by him in some place within the district of the office ; 2. The name, first name, domicil of the debtor, his OF PRIVILEGES AND MORTGAGES. 483 occupation, if he is known to have one, or some individual and special designation, so that the Registrar of Mortgages may always recognize and distinguish the person subject to the mortgage ; 3. The date and nature of the instrument ; 4. The amount of the capital of the claims set forth in the instrument or estimated by the person effecting the inscription, in case of annuities or prestations, or of contin- gent, conditional or uncertain rights, when an estimate thereof is ordered, as also the amount of the accessories to be added to the capital, and the time of payment ; 5. A statement of the nature and location of the pro- perty over which he intends to retain his privilege or mortgage. This last provision is not necessary in case of legal or judicial mortgages : in the absence of an agreement, a single inscription for such mortgages extends over all the real estate situated in the district of the ofSce. Civ. C. Ill, 214, 1120, 1275, 1690, 1692, 2114, 2129, 2149, 2152, 2153, 2157. 2149. Inscriptions to be made on the property of a deceased person can be made with the simple designation of the decedent, as is stated in No. 2 of the foregoing Article. Civ. C. 2148. 2150. The Registrar enters on his register the contents of the statement and hands to the appearer the instrument or certified copy of the same, and also one of the statements, at the foot of which he certifies that he has made the in- scription. Civ. C. 2197 et s., 2202. 2151. (Amended by law of V7th June, 1893.) A privileged creditor whose instrument has been inscribed or transcribed, or the mortgagee inscribed for a capital bearing interest or arrears, has the right to be placed, for three years I I 2 484 OF PRIVILEGES AND MORTGAGES. only, on the same rank as for the capital, without prejudice to the special inscriptions bearing mortgage from their date, to be effected for the interest and arrears not covered by the first transcription or inscription. 2153. A person who has caused an inscription to be made, and his representatives or assigns, may, by a public instrument, change on the register of mortgages the domicil elected by him, provided he selects and appoints a new one in the same district. Civ. C. 2148 et s. 2153. The rights of the State, of Districts and of public establishments to purely legal mortgages on the property of persons accountable to them ; those of minors or inter- dicted persons, on guardians ; those of married women, on their husbands, shall be inscribed on the production of two statements, containing only : 1. The name, first name, occupation and real domicil of the creditor, and the domicil elected for or by him in the district ; 2. The name, first name, occupation, domicil, or the exact designation of the debtor ; 3. The nature of the rights to be preserved and the amount of the value of special things, without being bound to fix the amount of those which are conditional, contingent or uncertain. Civ. C. 2121, 2135, 2148. 2154. Inscriptions keep the mortgage and the privilege alive for ten years from the day of their date ; their effect ceases if these inscriptions have not been renewed before the expiration of this period. Civ. C. 1134, 2108, 2134, 2146, 2148, 2166, 2167, 2168, 2169, 2180, 2181, 2183, 2194. 2155. The expenses of inscriptions shall be paid by the debtor, unless there is a covenant to the contrary; they OP PRIVILEGES AND MORTGAGES. 485 shall be advanced by the person making the inscription, except in case of a legal mortgage, for the inscription of which the registrar has his remedy against the debtor. The expenses of transcription which the vendor may cause to be made shall be paid by the purchaser. Civ. G. 1593, 2108, 2121. 2156. Actions to which inscriptions may give rise against creditors shall be brought before the tribunal having jurisdiction by a summons served upon the person or at the last domicil elected upon the register, even in case of death, either of the creditors or of those at whose residence they have elected domicil. Civ. C. 2145, 2149. Chap. V. Of Cancellation and Reduction of Inscriptions. 2157. Inscriptions shall be cancelled by the consent of the parties interested and having capacity therefor, or by virtue of a judgment of the highest Court, or one which has become final. Civ. C. 472, 1123, 1124, 1350, 1351, 1554, 2108, 2134, 2135, 2143, 2153, 2158, 2160, 2180, 2197. 2158. In both cases, those who want to have them can- celled shall deposit at the office of the Registrar a certified copy of the public instrument containing the consent, or of the judgment. 2159. A cancellation which is not consented to shall be applied for before the Tribunal of the District in which the inscription has been made, unless the same has been made 486 OP PRIVILEGES AND MOETQAGES. to secure a contingent or uncertain judgment, as to the execution and satisfaction of which the debtor and the alleged creditor are engaged in litigation or are awaiting judgment in another Tribunal, in which case the action for cancellation shall be brought there or be remitted. Nevertheless, the agreement made by the creditor and the debtor to bring the action before a Tribunal which they have selected in case of litigation shall receive its sanction between them. Civ. C. 2156. 3160. Cancellation must be ordered by the Tribunals when the inscription has been made without being based upon the law or upon an agreement, or when it has been made upon an instrument which was either irregular or has come to an end, or has been satisfied, or when the rights of privilege or mortgage have been wiped out by operation of the law. Civ. C. 2157, 2180. 2161. "Whenever inscriptions effected by a creditor who, according to law, has the right to take them on the present or future property of the debtor without any limit having been agreed to, extend over more different pieces of pro- perty than is necessary to secure the claims, an action to have the inscriptions reduced or partly cancelled as to what exceeds the proper portion can be maintained by the debtor. The rules established in Art. 2159 as to jurisdiction shall be followed. The provisions of the present article do not apply to con- ventional mortgages. Civ. C. 2124 et s. 2163. Inscriptions covering several pieces of property are considered excessive when the value of a single piece of property or of several of them, exceeds by more than one- third as to the property unencumbered the amount of the capital and legal accessories of the claims. Civ. C. 2164. OF PRIVILEGES AND MORTGAGES. 487 2163. In like manner, inscriptions taken according to the appraisal of the claims made by the creditor which have not been settled by agreement as to the mortgage to be granted for their protection and which by their nature are conditional, contingent or uncertain, can be reduced as excessive. Civ. C. 2132. 2164. In such case, the excess shall be appraised by the Judges according to circumstances, the probabilities of events and the presumptions of fact, in such a manner as to satisfy the probable rights of the creditor and the interest of the debtor in retaining sufficient credit, without prejudice to the new inscriptions for a mortgage which may be taken, from the day of their date, if events have brought up the uncer- tain claims to a larger amount. Civ. C. 1353. 2165. The value of real estate which is to be compared with the value of the claims with a third added thereto, is reached by calculating fifteen times the amount of the revenue shown by the original register of real estate taxes or by the rate of taxation on the books according to the proportion existing in the districts where the property is situated between such register or such rate and the revenue for real estate not liable to waste away, and ten times this amount if the real estate is of a kind to waste away. Nevertheless, the Judges may also be guided by the infor- mation derived from leases which do not appear suspicious, from the official reports of appraisals which may have been drawn previously at times not far off, and from all other similar instruments, and appraise the revenue at the average rate resulting from these various sources of in- formation. 488 OF PRIVILEGES AND MORTGAGES. Chap. VI. Of the Effect of Privileges and Mortgages against Third Parties in Possession. 2166. Creditors who have a privilege or mortgage on real estate "which has been inscribed follow the real estate through whatever hands it may pass and rank and are paid according to the rank of their claims or inscriptions. Civ. C. 1134, 2093, 2095, 2114, 2121, 2134, 2154, 2180. S167. If a third party in possession does not comply with the formalities hereafter mentioned to clear his pro- perty he remains liable as possessor for all the mortgages by the sole effect of the inscriptions and has the benefit of the time and delay granted to the original debtor. Civ. C. 1251, 2114, 2168, 2183 et s., 2193. 2168. A third party in possession is bound in the same case either to pay all the interest and the capital due, to whatever sum they may amount, or to abandon the real estate mortgaged without any restriction. Civ. C. 2172. 2169. If a third party in possession fails to fuUy comply with one of these obligations, each mortgagee has the right to cause the real estate to be sold thirty days after the service upon the original debtor of a demand and after service upon the third party in possession of a notice to pay the debt which has become due or to abandon the estate. Civ. C. 2114, 2176, 2217. 2170. JSTevertheless, a third party in possession who is not personally liable for the debt can object to the sale of the estate mortgaged which has been transferred to him if there is other real estate mortgaged for the same debt in the possession of the principal person or persons bound and can apply for the previous seizure thereof in the manner OP PRIVILEGES AND MORTGAGES. 489 provided under the Title Of Security : pending the seizure the sale of the mortgaged estate is postponed.. Civ. C. 2021 et s. 3171. The plea of seizure cannot be set up against a privileged creditor or a creditor who has a special mortgage on the estate. Civ. 0. 2103, 2129. 217S. As to abandonment on account of a mortgage, it can be made by all third parties in possession who are not personally liable for the debt and who are capable of making a conveyance. Civ. C. 1121, 1124, 2178. 2173. It can even take place after the third party in possession has acknowledged the debt or judgment has been rendered against him in such capacity only : the abandonment does not prevent the third party in possession from taking back the property up to the time of the judicial sale by paying the whole debt and the costs. Civ. C. 2174. 2174. An abandonment on account of a mortgage takes place at the clerk's office of the Tribunal where the property is situated; and a certificate thereof is delivered by this Tribunal. Upon the petition of the most active of the interested parties, a curator of the real estate abandoned is appointed, against whom proceedings are taken for the sale thereof in the manner provided for ejectments. Civ. C. 2204 et s. 2175. The damages occasioned by the acts or negligence of a third party in possession to the detriment of mortgagees or privileged creditors give rise to an action for indemnity against him; but he is only entitled to be repaid for his ex- penses and improvements to the extent of the additional value resulting from the improvement. Civ. C. 1631 et s., 2103 490 OF PRIVILEGES AND MORTGAGES. 5176. The revenue of the real estate mortgaged is only due by the third party in possession from the day of the demand for payment or to quit and if the proceedings instituted have been stopped for three years, from the time of the new demand which shall be served. Civ. C. 2169, 2183, 2184. 5177. Servitudes and real rights which a third party in possession had upon the estate before entering into posses- sion take effect again after the abandonment or the judicial sale made against him. His personal creditors can enforce their mortgages according to their rank against the property abandoned or sold at auction after all the creditors who have taken out inscriptions against the previous owners. Civ. C. 2134. 2178. A third party in possession who has paid the mortgage or who has abandoned the real estate mortgaged or has been ejected from such real estate has a remedy for warranty against the principal debtor, as allowed by law. Civ. C. 1626 et s., 2191. 2179. A third party in possession who wishes to free his property by paying the price thereof shall comply with the regulations contained in chapter VIII. of the present Title. Civ. C. 2181, 2193 et s. OP PRIVILEUES AND MORTGAGES. 491 Chap. VII. Of the Satisfaction of Peivileges and Mortgages. 2180. Privileges and mortgages expire : 1. By the extinction of the principal obligation, 2. By the renunciation of the mortgage by the creditor, 3. By the fulfilment of the formalities and conditions required of third parties in possession to free the property which they have acquired, 4. By prescription. Prescription is acquired by the debtor as to the property in his possession by the time specified for prescription of the actions which have given rise to the mortgage or privilege. As to the property which is in the possession of a third party, prescription is acquired in his favour by the time specified for prescription of property for his benefit: if prescription is based upon a deed it only commences to run from the time such deed has been transcribed on the registers of the Registrar. Inscriptions taken by the creditor do not prevent the prescription established by law in favour of a debtor or a third party in possession from running. Civ. C. 1234, 1251, 1431, 2114, 2121, 2123, 2134, 2135, 2157, 2166, 2183, 2195, 2219 et s., 2244, 2262, 2265. 492 OF PKIVILEGES AND MORTGAGES. Chap. VIII. Of the Mode of Freeing Property from Privileges AND Mortgages. S181. Contracts conveying real estate or real rights relating to real estate whicli third parties wish to free from privileges and mortgages shall be transcribed in full by the Registrar of mortgages in whose district the property is situated. This transcription shall take place on a register kept for that purpose and the Registrar shall be bound to give an acknowledgment thereof to the applicant. Civ. C. 2182, 2196. 2182. A simple transcription of deeds conveying pro- perty on the register of the Registrar does not free the real estate from existing mortgages and privileges. A vendor only transmits to the purchaser the ownership of and the rights to the property sold which he had him- self. He transmits them subject to the same privileges and mortgages by which it was encumbered. Civ. C. 2114, 2125. 2183. If the new owner wishes to protect himself against the effects of the proceedings authorized by chapter VI. of the present Title he is bound to serve a notice upon the creditors at the domicils elected by them in their inscrip- tions, either before the proceedings or within one month at the latest from the date of the first demand which has been served upon him, which notice shall contain : 1. An extract of his deed, mentioning only the date and the nature of the deed, the name and an exact designation of the vendor or of the donor, the nature and the location of the property sold or given, and in case of a mass of real estate a general description only of the estate and of the OF PRIVILEGES AND MORTGAGES. 493 districts in which it is situated, the price and the expenses forming part of the price of sale, and an appraisal of the property, if it has been given ; 2. An extract of the transcription of the deed of sale ; 3. A statement in three columns, of which the first shall contain the dates of the mortgages and those of the inscrip- tions ; the second the names of the creditors ; the third the amount of the claims inscribed. Civ. C. 1258, 2185. 2184. The purchaser or the donee shall declare in the same instrument that he is ready to pay forthwith the debts and the expenses secured by mortgage to the amount of the price only, whether the debts are due or not. Civ. C. 1188, 1652, 2167, 2183. 2185. When the new owner has given this notice within the time specified, every creditor whose deed has been iascribed can apply to have the real estate sold at auction and disposed of at public sale, provided : 1. This application is served upon the new owner within forty days at the latest from the notice served on behalf of the latter, adding two days for each distance of five myria- meters between the domicil elected and the real domicil of each creditor making the application ; 2. The application contains the consent of the applicant to raise the price or cause it to be raised one-tenth beyond what has been stipulated in the contract or declared by the new owner ; 3. The same notice is served within the same time upon the previous owner and principal debtor ; 4. The original and the copies of these notices are signed by the creditor making the appKcation or by his attorney- in-fact expressly appointed, who in such case is bound to give a copy of his power of attorney ; 5. Such creditor ofi'ers to give security to the extent of the price and charges : 494 OF PRIVILEGES AND MORTGAGES. Unless all this is done the whole shall be void. Civ. C. 419, 450, 724, 883, 1183, 1358, 1428, 1536, 1583, 2018, 2019, 2021, 2041, 2118, 2175, 2183, 2185, 2187, 2188. 2186. In case the creditors should not have applied for a sale at auction within the time and in the manner speci- fied, the value of the real estate remains finally settled at the price set down in the deed or declared by the new owner, who, in consequence, shall be free from all privileges and mortgages by paying said price to the creditors who hold the proper rank to receive it, or by depositing it. Civ. C. 1258, 1259, 1650, 2180—3, 2183. 3187. In case of resale at auction it shall take place according to the rules established for compulsory ejectments, either upon the application of the creditor who has asked for it, or of the new owner. The applicant shall mention in the advertisements, the price stipulated in the deed or declared, and the additional amount to which the creditor has bound himself to raise it or cause it to be raised. Civ. C. 2202. 2188. The highest bidder is bound beyond the price of his bid to return to the owner or donee who has been dis- possessed the expenses and costs of the deed, those of the transcription on the registers of the Registrar, those of the notices and those incurred by him to obtain the resale. Civ. C. 550, 1183, 1652, 2175, 2176. 2189. A purchaser or donee who retains the real estate put up at auction by becoming the highest bidder is not obliged to have the judgment ordering the public sale transcribed. 2190. The withdrawal of the creditor applying for a sale at auction does not prevent the public sale, even if the OF PRIVILEGES AND MORTGAGES. 495 creditor pays the amount of his proposal, unless all the other mortgagees expressly consent thereto. 2191. A purchaser who has become the highest bidder shall have his remedy, such as the law gives it, against the vendor for the repayment of the amount exceeding the price stipulated in the deed and for the interest of such amount from the day of each payment. Civ. C. 1625 et s., 2177, 2178, 2192. 2193. In case the deed of the new owner includes real estate and personal property, or several pieces of real estate some of which are mortgaged and others not mortgaged, situated in the same or in several districts of offices of Registrars, conveyed for a single or same price or for distinct or separate prices, and which are or are not worked for the same enterprise, the price of each piece of real estate, subject to special and distinct inscriptions shall, if necessary, be declared in the notice served upon the new owner by valua- tion on the total price mentioned in the deed. The creditor who outbids can in no case be compelled to extend his proposal, either to other personal property or to any other pieces of real estate than those mortgaged for his claim and situated in the same district ; but the new owner shall have his remedy against the former ones to be compensated for any damage which he may have suffered on account of the division of the things which he has pur- chased or of the enterprises worked. Civ. C. 2167, 2168, 2169, 2183, 2185. 496 OF PRIVILEGES AND MORTGAGES. Chap. IX. Or THE MANNER OF SATISFYING MoKTGAGES AVHEN NO INSCBIPTION EXISTS ON THE PROPERTY OF HxJSBANDS AND Guardians. 2193. Purchasers of real estate belonging to husbands or guardians may, when there are no inscriptions on such real estate on account of the management of the guardian or on account of dowry or of the wife's right to take back and her marriage settlements, satisfy the mortgages existing on the property acquired by them. Civ. C. 2121, 2135 et s., 2153, 2181. 2194. For that purpose they shall file, in the clerk's ojffice of the Civil Tribunal of the place where the property is situated, a copy duly compared, of the deed transferring the property, and they shall certify the filing thus made by a notice served as well upon the wife or the assistant guardian as upon the King's Attorney {Itepublic's Attorney/) of the Tribunal. An extract of this deed containing its date, the names, first names, occupation and domicil of the contract- ing parties, a description of the nature and location of the property, the price and other expenses of the sale, shall be and shall remain posted for two months in the hall of the Court ; during which time the wives, husbands, guardians, assistant guardians, minors, interdicted persons, relatives or friends, and the King's Attorney {Republic's Attorney) are allowed to apply for, if necessary, and to cause inscriptions to be made on the property conveyed, at the office of the Registrar of Mortgages, which shall produce the same efiect as if they had been taken upon the day of the marriage contract or the day the guardian entered upon his manage- ment ; without prejudice to the proceedings which might be brought against the husbands and guardians, as has been stated hereabove, on account of the mortgages granted by OF PRIVILEGES AND MORTGAGES. 497 them in favour of third parties without having declared to the latter that the real estate was already mortgaged on account of marriage or guardianship. Civ. C. 1348, 1353, 2136, 2154, 2181, 2183. 2195. If, during the course of the two months of the advertising of the contract, no inscription has been taken on behalf of a wife, a minor, or an interdicted person, on the real estate sold, it comes to the purchaser without any lien on account of dowry, of the wife's right to take back and her marriage settlements or of management of the guardian ; but subject to the remedy against the husband or the guardian, if there is occasion therefor. If inscriptions have been taken out in behalf of such wife, minor or interdicted person, and if there are previous creditors who absorb the whole price or a part of it, the purchaser shall be released for the price or the part of the price paid by him to creditors holding effectual rank, and the inscriptions taken in behalf of a wife, minor or inter- dicted person shall be cancelled of record, either wholly or up to the amount due. If the inscriptions in behalf of a wife, minor or interdicted person had been made previously, the purchaser cannot make any payment of the price to the detriment of such inscrip- tions, which shall always take the date of the marriage contract or of the beginning of the guardian's management, as has been hereabove stated : and in such case the inscrip- tions of other creditors who do not come in effectual rank shall be canceUed of record. Civ. C. 2135, 2136, 2154, :2166, 2180, 2186, 2193, 2194. K K 498 OF PRIVILEGES AND MORTGAGES. Chap. X. Of the Publicity or Registers and of the Eesponsibility of Registkars. 2196. Registrars of mortgages are bound to deliver copies of the deeds transcribed on their registers and of the inscriptions existing, or a certificate to the effect that none exists, to all those who ask for the same. Civ. C. 2135, 2148, 2153, 2154, 2197, 2202. 2197. They are responsible for the damage resulting from: 1. Omissions on their part to record on their registers the transcriptions of deeds of conveyance and the inscriptions applied for in their offices ; 2. Omissions to mention in their certificates one or several existing inscriptions, unless in the latter case the error should come from an insufficient description which could not be charged to them. Civ. C. 1382, 1383, 2148, § 2, 2157, 2202. 2198. The real estate as to which the Registrar has omitted in his certificates one or more of the liens inscribed remains free therefrom in the hands of the new purchaser, subject to the liability of the registrar, provided such pur- chaser has asked for the certificate since the transcription of his deed : without prejudice, nevertheless, to the rights of the creditors to be placed according to the rank belong- ing to them, so long as the price has not been paid by the purchaser or so long as the rank which the creditors are entitled to among each other has not been con- firmed. 2199. Registrars can never refuse or delay the transcrip- tion of deeds of conveyance, the inscription of mortgages, or OF PEIVILEGES AND MORTOAGES. 499 the delivery of certificates asked for, under penalty of damages to the parties ; for such purpose an official report of the refusal or delay shall forthwith be drawn up at the solicitation of the applicants, either by a Justice of the Peace or by a sherifi' and crier of the Court, or by any other sherifi' or notary with the assistance of two witnesses. Civ. C. 2197. 2300. (Amended by Law o/5tk January, 1875.) — Never- theless, Registrars are bound to keep a register on which they shall inscribe day by day and in numerical order the deliveries made to them of deeds of conveyance or attach- ments of real estate to be transcribed, of statements to be inscribed and of instruments, certified copies or extracts of instruments granting subrogation or a right of priority, and of judgments ordering the annulling, cancelling or rescission of instruments transcribed to be entered. They shall give the applicant a receipt on stamped paper bearing the number of the register on which the delivery has been recorded, for each instrument or each statement to be transcribed, inscribed or entered, and they shall not transcribe deeds of conveyance or attachments of real estate nor inscribe statements or enter instruments granting subrogation or a right of priority, or judgments ordering the annulling, cancelling or rescission of deeds transcribed on the registers kept for that purpose, except upon the date and in the order of the deliveries made to them. The register provided for by this article shall be kept in duplicate and one of the duplicates shall be deposited with- out expense and within thirty days from the time it is closed,' at the clerk's of&ce of the Civil Tribunal of a different district from the one in which the Registrar resides. The Tribunal in the clerk's office of which the duplicate of the register of deposit is deposited shall be appointed by an order of the Presiding Justice of the Court of Appeals in the district of which the Registrar's office is situated. K K 2 500 OP PRIVILEGES AND MORTGAGES. This order shall be made upon the application of the Attorney- General. 2201. All the registers of Registrars shall be of stamped paper, numbered and initialed upon each page from the first to the last by one of the Judges of the Tribunal in the district of which the office is situated. The registers shall be closed every day in the same manner as those kept for recording instruments. 2202. In performing their duties Registrars are bound to comply with aU the provisions of the present chapter, under penalty of a fine of from two hundred to one thousand francs for the first violation and of dismissal in case of a second violation ; without prejudice to damages to the parties, which shall be paid before the fine. Civ. C. 1149, 1382, 2102—7, 2197. 2203. Entries relating to deposits, inscriptions and tran- scriptions shall be made on the registers following each other without blanks or interlineations, under penalty for the registrar of a fine of from one thousand to two thousand francs, besides damages to the parties, also payable pre- viously to the fine. ( 501 ) Title Nineteenth. of compglsoey ejectment and op rank among ceeditoes. (Passed 19th March, 1804 ; promulgated 29th of same mouth.) Chap. I. Of Compulsory Ejectments. 2204. A creditor may sue for ejectment : 1. From real estate or its accessories deemed to be real property owned in fee by his debtor ; 2. From the usufruct belonging to the debtor upon property of the same nature. Civ. C. 517, 578, 2092 et s., 2118. 2205. Neyertheless, the undivided share of a co-heir in the real estate of a succession cannot be sold out by his personal creditors before the division or judicial sale which they may demand, if they deem proper, or in which they may take part, in accordance with article 882 of the Title Of Successions. Civ. C. 882, 1166, 2114, 2169. 2206. Eeal estate of a minor, even emancipated, or of an interdicted person, cannot be sold before seizure of the personal property. Civ. C. 457. 2207. Seizure of the personal property is not necessary before ejectment from real estate owned jointly by a person of full age and a minor or an interdicted person, if the debt is common to both of them, or if proceedings have 502 OF COMPULSORY EJECTMENT, ETC. been commenced against a person of full age or before interdiction. 2208. Ejectment from real estate forming part of a community shall be sued for against the husband alone who is the debtor, even if the wife has made herself liable for the debt. Ejectment from real estate of the wife which has not become part of the community shall be sued for against the husband and wife, and the latter may be authorized by the Court to carry on the proceedings in case of the refusal of the husband to go on with the suit with her, or, if the husband is a minor. In case of minority of the husband and wife, or of minority of the wife alone, if her husband, being of full age, refuses to carry on the proceedings with her, a guardian is appointed to the wife by the Tribunal and the proceedings are carried on against him. Civ. C. 217 et s., 1421, 1424 et s., 1428, 1449, 1554 et s., 1576. 2209. A creditor cannot sue to have real estate which has not been mortgaged to him sold, unless the property mortgaged to him is of insufficient value. 2210. A forced sale of property which is situated in several different districts can only be applied for successively, unless it forms part of one and the same estate. It shall be carried on before the Tribunal in the district of which is the principal establishment of the estate, or if there is no such principal establishment, where the portion of property lies which brings in the greatest revenue accord- ing to the original tax-roll. 2211. If the property mortgaged to the creditor, or the property not mortgaged, or the property situated in several districts, forms part of a single and same estate, the sale of OF COMPULSORY EJECTMENT, ETC. 503 the whole shall be applied for together if the debtor -wishes it ; and a valuation of the price which the public sale might bring shall be made, if necessary. Civ. C. 2166, 2192. 2312. If a debtor establishes by leases in the public form that the net and available revenue of his real estate during one year is sufficient for the payment of the principal, interest and costs of the debt, and if he offers the assignment thereof to the creditor, the proceedings may be stayed by the Judges, but may be renewed in case of an attachment or if some other obstacle to the payment arises. Civ. C. 1275, 1317. 2213. A forced sale of real estate can only be applied for by virtue of an instrument in public form, and upon which execution can be issued, and for a duly established and liquidated debt. If the debt is for money, but is not liquidated, the proceedings are regular, but a public sale can only take place after the same has been liquidated. Civ. C. 1317. 2214. An assignee of an instrunient upon which execu- tion can be issued can only sue for an ejectment after a notice of the assignment has been served upon the debtor. Civ. C. 1690, 2213. 2215. Proceedings can result from a provisional or final judgment giving the right to immediate execution, not- withstanding an appeal ; but a public sale can only take place after a final judgment of the highest Court or when a judgment has become final. Proceedings cannot be instituted in consequence of a judgment by default during the time the default can be opened. Civ. 0. 1351. 2216. Proceedings cannot be dismissed on the ground 504 OF COMPULSORY EJECTMENT, ETC. that the creditor has brought them for a larger amount than what is due to him. 3317. Previously to all proceedings for ejectment from real estate, a demand to pay shall be served through a sheriff at the instance and solicitation of the creditor upon the person of the debtor or at his domicil. The form of the demand and of the proceedings relating to the ejectment are regulated by the laws of procedure. Chap. II. Of the Rank and Distribution of the Price BETWEEN Creditors. 3318. The rank and the distribution of the price of real estate, and the manner of proceeding, are regulated by the laws of procedure. ( 505 ) Title Twentieth, op peescription. (Passed Uth March, 1804 ; promulgated 25th of same month.) Chap. I. General Provisions. 2219. Prescription is a way of acquiring property or of releasing oneself at the end of a certain period of time and under conditions specified by law. Civ. C. 617, 625, 712, 1234, 2180. 2220. A person cannot renounce prescription before- hand : he can renounce prescription which has taken effect- Civ. C. 1130, 1133, 1134. 2221. A renunciation of prescription is either express or tacit : tacit renunciation results from a fact which supposes the abandonment of an acquired right. Civ. C. 2220. 2222. A person who cannot convey cannot renounce prescription which has taken effect. Civ. C. 128, 217, 1124 et s., 1305 et s., 1421, 1428, 1449, 1507 et s., 1535, 1538, 1554 et s., 1561, 1594, 1598, 1988 et s. 2223. Judges cannot, of their own accord, set forth the plea resulting from prescription. Civ. C. 2224. 2224. Prescription can be set up at all stages of a case. 506 OP PEESCRIPTION. even before a Royal Court {Court of Appeals), unless the party who has not set up the plea of prescription should be considered from the circumstances as having renounced it. Civ. C. 2272, 2275. 2225. Creditors or any other persons whose interest it is that prescription should have taken place can set it up, even if the debtor or owner renounces it. Civ. C. 1166, 1183, 1705, 2125. 2226. There is no prescription against things which are not in trade (/). Civ. C. 538, 643, 1128, 2227, 2229, 2230, 2232, 2262. 2227. The State, public institutions and districts are subject to the same prescriptions as private individuals, and can set them up in the same manner. Civ. C. 2265. Chap. II. Or Possession. 2228. Possession is the retention or enjoyment of a thing or of a right which we have and which we make use of, either ourselves or by another person who holds it or makes use of it in our name. Civ. C. 1614, 2134, 2180, 2229, 2230, 2236, 2239, 2262. 2229. In order that prescription should take place it is (/) This expression must Ije taken in its broad sense, and means that property which cannot belong to private individuals is not subject to prescription. OP PRESCRIPTION. 507 necessary to have a continuous, uninterrupted, peaceful, public and unambiguous possession in the capacity of owner. Civ. C. 688, 691, 2232, 2236, 2242, 2243. 2230. A person is always presumed to hold possession for himself and as owner if it is not established that he commenced to possess for another person. Civ. C. 2234, 2236, 2242 et s. 2231. When a person has commenced to hold possession for another he is always presumed to possess by virtue of the same title, unless there is proof to the contrary. Civ. C. 1350, 1352, 2236, 2240. 2282. Acts which are purely discretionary or which are simply tolerated cannot give rise to possession or pre- scription. 2233. Neither can acts of duress estabhsh possession capable of giving rise to prescription. Effectual possession only begins from the time the duress has ceased. Civ. C. 1112. 2234. An actual possessor who establishes that he has formerly held possession is presumed to have continued it during the intervening period unless there is proof to the contrary. Civ. C. 1350, 1352, 2230 et s. 2235. To make prescription complete, a person may add to the possession he holds the possession of his predecessor, in whatever manner the former has come into it, whether it is by virtue of a general or special title, or with or with- out consideration. Civ. C. 724, 2229, 2264, 2265. 508 OF PEESCRIPTION. Chap. III. Of the Causes which Prevent Prescription. 2236. Those who hold possession for third parties never acquire by prescription, whatever time may have elapsed. Thus, a lessee, a depositary, a usufructuary, and all others who hold the property of an owner, not as their own, cannot acquire it by prescription. Civ. C. 578, 1709, 1905, 2219, 2229, 2240, 2262. 2237. Neither can the heirs of those who held property in one of the manners set forth in the foregoing article acquire it by prescription. Civ. C. 724. 2238. Nevertheless, the persons mentioned in articles 2236 and 2237 can acquire by prescription if the title giving them possession is modified, either owing to the act of a third party or by the objections which they set up against the rights of the owner. Civ. C. 2231, 2236, 2240. 2239. Those to whom lessees or depositaries or other persons holding property not as their own have transferred such property by an instrument of conveyance can acquire it by prescription. Civ. C. 2262, 2265 et s. 2240. A person cannot acquire by prescription against his own title, in this way, that a person cannot himself change the cause and nature of his possession. Civ. C. 691, 2220, 2231,2236, 2238. 2241. A person can acquire by prescription against his own title, in this way, that the cancellation of the obligation which he has contracted can be obtained by prescription. Civ. C. 2236, 2240. OF PEBSCEIPTION. 509 Chap. IY. Of the Causes Interrupting or Suspending the Course of Prescription. § 1. Of the Causes Interrupting Prescription. 2242. Prescription can be interrupted either naturally or civiUy. Civ. C. 2229, 2233, 2243. 2243. Natural interruption takes place when the person in possession is deprived for upwards of one year of the enjoyment of the property, either by the former owner or by a third party. 2244. A citation to appear in court, a demand, or an attachment served upon the person whom one wishes to prevent from acquiring by prescription, constitute a civil interruption. Civ. C. 1304, 1576, 2008, 2114, 2169, 2180, 2229, 2247, 2251, 2274, 2277. 2245. A citation to appear for conciliation in the office of a Justice of the Peace interrupts prescription from the day of its date, when it is followed by a summons to appear in court issued within the time allowed by law. 2246. A citation to appear in court before a Judge haviug no jurisdiction interrupts prescription. Civ. C. 2247. 2247. If a summons is void because its form is irregular. If the plaintiff withdraws his action, If he allows the action to drop, Or if his action is dismissed, The interruption is considered as not having taken place. Civ. C. 2237, 2246, 2262. 510 OF PRESCKIPTIOK. S248. Prescription is interrupted by an admission on tlie part of the debtor or of the person in possession of the right of the individual against whom prescription was running. Civ. C. 802, 1165, 1300, 1912, 2242, 2262. 3249. The service of papers made in accordance with the foregoing articles upon one of several joint debtors, or his admission, interrupts prescription against all the others and even against their heirs. Such service made upon one of the heirs of a joint debtor, or an admission on the part of that heir, does not interrupt prescription against the other heirs, even if the claim was upon a mortgage, if the obligation is indi- visible. Such service or admission only interrupts prescription against the other co-debtors for the share for which the heir is liable. For the purpose of interrupting prescripti(m entirely against all the other co-debtors it is necessary to make such service upon all the heirs of the deceased debtor or to have an admission from all these heirs. Civ. C. 1199, 1206, 1213, 1217, 1222. 2250. Such service made upon the principal debtor, or an admission on his part, interrupts prescription against the surety. Civ. C. 2234, 2236. § 2. Of the Causes u-Mch Suspend the Course of Prescription. 2251. Prescription runs against all persons, unless they come under an exception established by law. Civ. C. 2227, 2261. 2252. Prescription does not run against minors and interdicted persons, with the exception of what is stated in art. 2278 and except in the other cases provided by law. Civ. C. 710, 883. OF PRESCRIPTION. 511 2253. It never runs between husband and wife. 2254. Prescription runs against a married woman as to the property of which the husband has the management, subject to her remedj'- against her husband, even if there is no separation of property resulting from a marriage con- tract or from a judgment. Civ. 0. 1428, 1443. 2255. Nevertheless, it does not run during the marriage against the conveyance of property subject to the dotal system, in accordance with art. 1561 of the Title Of Marriage Contracts and of the Respective Rights of Husband and Wife. Civ. C. 1304, 1560 et s. 2256. Prescription is likewise suspended during mar- liage : 1. In case an action on the part of the wife could only be brought after she had made use of an option to accept or renounce the community ; 2. In case the husband, having sold property belonging to the wife individually, without her consent, is responsible for the sale, and in all other cases in which the action of the wife might make the husband responsible. Civ. 0. 1428, 1453. 2257. Prescription does not run — against a claim de- pending upon a condition, until the condition takes place ; — against an action upon warranty, until the ejectment has taken" place ; — against a claim maturing upon a given day, until the day arrives. Civ. C. 706, 707, 1181, 1185 et s., 1382, 1705, 2180, 2262, 2265. 2258. Prescription does not run against an heir under benefit of inventory for claims which he has against the succession. It runs against a vacant succession, although no cura,tor has been appointed. Civ. C. 802, 811. 512 OF PEESCBIPTION. 2S59. It runs also during the three months allowed to make the inventory and the forty days for deliberating. Civ. C. 795. Chap. V. Of the Time required for Prescription. § 1. General Provisions. 2260. Prescription is counted by days and not by hours. 2261. It takes eflFect when the last day of the period has passed. §2.0/" Prescription of Thirty Tears. 2262. All actions relating to real estate as well as to personal property are outlawed at the end of thirty years and the person alleging prescription is not obliged to pro- duce any proof and no exception resulting from bad faitli can be set up against him. Civ. C. 706, 2229, 2249, 2263, 2268, 2274. 2263. After twenty-eight years from the date of the last instrument, the person who owes an annuity can be compelled to furnish at his own expense a new instrument to his creditor or to the latter's legal representatives. Civ. C. 1337, 2262. 2264. The rules of prescription applying to other things than those mentioned in the present Title are explained under the Titles which apply to them. Civ. C. 137, 330, 476, 641, 663, 560, 617, 619, 641, 642, 686, 690, 695, OP PRESCRIPTION. 513 706 et s, 789, 809, 880, 957, 966, 1047, 1199, 1206, 1304, 1461, 1560 et s., 1676, 2180. § 3. 0/' Prescription of Ten or Tioenty Years. 2265. A person who acquires a piece of real estate in good faith, and by virtue of a good title is covered by pre- scription as to its ownership at the end of ten years if the real owner lives within the bounds of the district of the Eoyal Court {Court of Appeals) where the real estate is situated, and at the end of twenty years if such owner is ■domiciled outside of said district. Civ. C. 550, 939, 2267, 2268, 2269. 2266. If the real owner has had a domicil within and without the district at different times, it is necessary in ■order to make the prescription complete to add to what is missing of the ten years of presence twice the number of years of absence which are missing to complete the ten years of presence. 2267. A title which is void on account of an irregularity as to its form cannot be used as a foundation to the pre- scription of ten and twenty years. 2268. Good faith is always presumed and the person who alleges bad faith is obliged to prove it. Civ. C. 1116. 2269. It is sufficient that good faith should have existed at the time of the acquisition. Civ. C. 2231. 2270. At the end of ten years architects and contractors are released from their guarantee in connection with the heavy works which they have put up or directed. Civ. 0. 1792. C.N. L L 514 OF PRESCRIPTION. § 4. Q/" certain Special Prescriptions. 2271. The action belonging to masters and teachers of sciences and arts, for lessons given by them by the month ; The action belonging to keepers of hotels and eating- houses, for lodging and board furnished by them ; The action belonging to workmen and labourers, for the payment of their days of work, their supplies and wages ; Are outlawed at the end of six months. Civ. C. 1710, 1758, 1779, 2101—4, 2102—5, 2260, 2274 et s., 2278. 2S72. {Amended hyLaw of 30th November, 1892.)— The action belonging to sheriffs for the fees of the writs which they serve and the matters they attend to ; The action belonging to tradespeople for the goods they sell to private individuals not in trade ; The action belonging to schoolmasters for the amount of their pupils' schooling ; and to other masters for the charges of the apprenticeship ; The action belonging to servants who are taken by the year, for the payment of their wages ; Are outlawed at the end of one year. The action belonging to physicians, surgeons, surgeon- dentists, midwives and druggists, for their visits, operations and medicines, is outlawed at the end of two years. Civ. C. 2274, 2278. 2273. The action belonging to solicitors, for the pay- ment of their charges and fees, is outlawed at the end of two years from the time of the judgment rendered in the suits or of the settlement made by the parties or since the revocation of said solicitors. As regards the matters not ended, they cannot bring suit for their charges and fees dating back more than five years. Civ. C. 2274, 2278. 2274. Prescription takes place in the above cases, even OF PEESCRIPTION. 515 if the supplies, deliveries, services and work have heen continued. It only ceases to run in case of an account stated, a schedule or an obligation given, or a summons before a Court which has not lapsed. Civ. C. 1353, 2272, 2273, 2275. 2275. Ifevertheless, those against whom these prescrip- tions are set up can have the oath proffered to those who set them up, for the purpose of ascertaining whether the thing has really been paid for. The oath can be proffered to widows and heirs, or to the guardians of the latter, if they are minors, in order to make them declare if they know whether the thing is due. Civ. C. 1358, 2272, 2278. 2276. Judges and solicitors are released from claims for documents at the end of five years after judgment in the suits. Sheriffs are likewise released two years after they have attended to the matters or after the service of the writs which they have had charge of. 2277. Arrears of perpetual annuities or annuities for life; Those of allowances for support ; The rents of houses and those of country property ; The interest on sums loaned, and generally everything which is payable annually or periodically at shorter times ; Are outlawed at the end of five years. Civ. C. 584, 1289, 1728, 1905, 1909, 1968, 1996, 2001, 2220, 2244, 2248, 2251. 2278. The prescriptions referred to in the articles of the present section run against minors and interdicted persons, subject to their remedy against their guardians. Civ. C. 2252. L L 2 516 OF PRESCRIPTION. 2379. Possession is equivalent to a title with respect to personal property. Nevertheless, a person who has lost a thing, or from whom it has been stolen, can claim it from the person in whose hands he finds it within three years from the day of the loss or of the theft; but the latter has his remedy against the individual from whom he has received it. Civ. C. 527, 550, 1141, 1302, 1350, 1752, 1926, 2084, 2280. 2280. (Amended hy latv of llth July, 1892.)— If the present possessor of the thing stolen or lost has bought it at a fair or at a market or at a public sale, or from a tradesman selling similar goods, the original owner can only have it returned by reimbursing to the possessor the price which it has cost him. The lessor who claims by virtue of article 2102 the furniture removed without his consent and which has been purchased under the same conditions, must likewise repay to the purchaser the price which it has cost him. 2281. Prescriptions which have commenced to run at the time of the publication of the present Title shall be regulated in accordance with the former laws. Nevertheless, the prescriptions then commenced and for which, under the former laws, more than thirteen years are still necessary from the same time, shall become complete at the end of that period of thirteen years. Civ. C. 2, 691, 2262. INDEX. [The References apply to tlie Articles.] ABANDONMENT. See Mortgages. of rights to party wall, 656 of tenement subject to servitude, 699 in case of successions under benefit of inventory, 802 of enjoyment of beneficiaries, 1053 by ascendants in favor of their descendants, 1075 ABBREVIATIONS, not allowed in certificates of oii-il status, 42 ABDUCTION, paternity can be proved in case of, 340 ABSENCE. See Invbntoky and Temporary Guardian. presumption of, 112 notary to represent absentees, 113 duties of public prosecutor, 114 establishment of, 115 proceedings upon application to establish, 116 et s. when judgment may be rendered, 119 effects if absentee has left no power of attorney, 120 effects if he has left a power of attorney, 121 effects upon expiration of power of attorney, 122 when heirs have provisional possession, 123 continuance or dissolution of community, 124 effects of provisional possession, 125 et s. real estate cannot be conveyed or encumbered, 128 when effects become final and sureties discharged, 129 when death established succession becomes open, 130 return of revenue spent, 130 effects of reappearance of absentee, 131 et s. rights of children, 133 rights of third parties, 134 eventual rights of absentee, 135 succession coming to absentee, 136 action to claim inheritance, 137 as to income collected, 138 effects in connection with marriage, 139 et s. oare of minor children, 141 et s. action for division, 817 how division made when some heirs absent, 838 when division final, 840 establishment of children, 1427 518 ISTDEX. ABSENTEES. See Absence. ACCEPTANCE. See Donations and Successions. of successions, 774 not compulsoiy, 775 by roamed women, 776 by minors or interdicted persons, 776 effect of, 777 can be express or tacit, 778 when not implied, 779 results from donation, sale or assignment, 780 as to beirs of an heir, 781 et s. wben prescription takes effect, 789 within what time can be made, 790 by wife of community, 1453 wife must decide within three months from divorce, 1463 rights of widow, 1465 effects of acceptance of community by wife, 1467 by wife's heirs, 1475 of assignment by debtor, 1690 of power of attorney, 1985 ACCESSION defined, 546 as to fniits, 547 what adds itself to a thing, 551 what is upon and below the surface, 552 buildings and constructions, 553 et s. alluvion, 556 et s. islands and accretions, 560 et s. bed of river, 563 pigeons, rabbits, and fish, 564 when things belong to different owners, 565 et s. mechanic, etc., has used material not belonging to him, 570 workmanship exceeds value of material, 571 materials cannot be separated, 572 there is a mixture of several materials, 573 material superior, 574 a thing remains in common, 575 rights of owner of material used without his knowledge, 576 damages for use of material used without owner's know- ledge, 577 ownership acquired by, 712 ACCESSORIES, of a thing bequeathed, 1018 of a thing sold, 1615 included in sale or assignment of a claim, 1692 when security extends to, 2016 in case of ejectment, 2204 ACCIDENT, when oral evidence sufficient, 1348 repairs in case of, 1754 depositary not answerable for, 1929 INDEX. 519 ACCIDENT (BY), owner or usufructuary not obliged to rebuild, 607 building destroyed, 855 when damages due by debtor, 1148 destruction of speci6ed thing, 1302 loss of a thing unduly received, 1379 loss in case of sale, 1647 destruction of property leased, 1722 destruction of crop, 1769 responsibility of lessee, 1772 carriers not responsible for loss, 1784 when lessee responsible in cattle leases, 1807 when loss falls upon farmer, 1825 responsibility of borrower for loss, 1881 ACCIDENTALLY. See By Accident. ACCOTJNT STATED, when prescription is interrupted, 2248 when certain special prescriptions cease to run, 2274 ACCOUNTS, in case of absence, 113 guardian to furnish, 470 final accounts of guardian, 471 agreement between guardian and minor void until furnished, 472 controversies as to, 473 interest not due by minor until accounting closed, 474 ACCRETION of land bordering river, 556 when belongs to state, 560 of share of heir who renounces, 786 in case of a joint legacy, 1044 ACKNOWLEDGMENT of natural chUd, how recorded, 62 how made, 334 which children cannot be acknowledged, 335 by father of no effect against mother, 336 its effect when made during marriage, 337 rights of natural child, 338 interested parties may contest, 389 when chUd cannot prove paternal or maternal descent, 342 when judicial mortgages result from, 2123 ACQUESTS, when real estate an acquest of community, 1402 when purchases not, 1408 what composes community of, 1498 partnership of acquests in dotal system, 1581 ACTS OF VIOLENCE. See Violence. lessor not responsible for, 1725 when lessee must have lessor joined, 1727 520 INDEX. ADMINISTRATION, acts of provisional administration do not imply acceptance of inheritance, 779 ADMISSION, weight given to, 1350 kinds of, 1354 force of an extra-judicial, 1355 what is a judicial, 1356 ADMISSION OF CLAIM in action against debtor jointly and severally liable, 1211 ADOPTION. See Officioits Guakdian. who can adopt, 343 who can be adopted, 344 in whose favour right to adopt can lie made use of, 345 adopted must be of full age, 346 confers adopter's name, 347 marriage prohibited between certain persons, 348 obligation to support, 349 what rights adopted acquires to inherit, 350 what property returned in case of adopted's death, 351 adopter takes by inheritance from children of adopted, 352 how obtained, 353 et s. when proceedings to continue in case of adopter's death, 360 ADULTEROUS CHILDREN cannot be legitimated, 331 acknowledged, 335 are entitled to support, 762 ADULTERY. See Disavowal. a ground for divorce, 229, 230 husband may disown child, 312 et s^ ADVANCEMENT to child of interdicted person, 511 ADVANTAGES, heirs must collate in case of, 843 what not subject to collation, 852 et s. when division made by ascendant can be attacked, 1079 rights of heirs in sales between husband and wife in case of, 1595 not prohibited in general partnership, 1840 ADVICE necessary for guardian to compromise, 467 AFFIRMATION, wife must affirm correctness of inventory, 1456 AGE for marriage, 144 dispensations can be granted for marriage, 145 for adoption, 343 whea exempts from acting as guardian, 433 when majority takes place, 488 INDEX. 521 AGREEMENTS WITHOUT CONTRACT. See Quasi Contkaots. what they ai'e and what they result from, 1370 ALIENS, naturalization of, 8 when their children may claim French citizenship, 9 their rights, 11 nationality of married woman, 12 effects of establishing domicil, 13 when suit can be brought against, 14 can sue a French citizen, 15 must give security, 16 faith to be given to certificates of civil status of, 47 marriage with French citizen, when valid, 170 right to inherit, 726 right to dispose in favor of, 912 ALIMONY. See Support. pending decision of suit for divorce, 238 after divorce, 301 ALLUVION, what it is, 556 to whom it belongs, 556 et s. when it does not take place, 558 enjoyment of usufructuary, 596 ALTERATIONS in certificates of civil status, 52 ANIMALS. See Cattle. young of animals belong to owner, 547 responsibility of usufructuary in case of death of, 615 owner responsible for injuries caused by, 1385 ANNUITIES are personal property, 529 when redeemable if perpetual, 530 interest can be stipulated upon capital not to be returned, 1909 duration of annuity when interest stipulated, 1910 redemption of perpetual annuity, 1911 debtor of perpetual annuity may be compelled to redeem, 1912 capital due in case of bankruptcy or insolvency, 1913 rules relating to life, 1914 how granted, 1968 can be granted without consideration, 1969 can be redeemed, 1970 in whose favour can be made, 1971 can be made in favour of one or several persons, 1972 can be made in favour of third party, 1973 ineffectual if made in favour of dead person, 1974 et s. rate to be fixed by parties, 1976 when cancellation can be applied for, 1977 effect of non-payment of interest, 1978 obligations of grantor, 1979 proportion due, 1980 when cannot be attached, 1981 do not cease upon civil death, 1982 owner must prove his existence, 1983 522 INDEX. ANNULMENT. See Cancellation and Nullity. ANNULMENT OF MARRIAGE. See Mareiage. ■when maiTiage contracted without consent of the partie.s can be attacked, 180 when action for annulment can he brought, 181 how marriage can be attacked for want of consent, 182 when action no longer maintainable, 183 special cases in which marriage can be attacked, 184 when marriage cannot be attacked if parties under age, 185 those who have consented cannot ask for, 186 special restrictions to action for, 187 who can apply for annulment of second marriage, 188 validity of first marriage first to be decided upon, 189 republic's attorney can ask for annulment in certain cases, 190 marriage not publicly contracted can be attacked, 191 cannot be asked for in case of "possession d'etat," 196 effects of marriage which is annulled, 201 effects respecting contracting party in good faith and children, 202 ANTICHRESIS, definition, 2072 how created, 2085 obligations of creditor, 2086 debtor cannot claim enjoyment, 2087 creditor does not become owner, 2088 revenues cannot be taken as interest, 2089 provisions relating to pawns which apply to, 2090 rights of third parties not affected by, 2091 ANTICIPATION, sub-tenant cannot set up payments made in, 1753 APPOINTMENT OF AN HEIR, power to dispose by, 967 effects of, 1002 APPRAISEMENT. See Expert and Successions. of real estate, 824 of personal property, 825 cost of, 1080 of cattle, 1817 does not confer ownership of cattle, 1822 APPRENTICESHIP, expenses of, not subject to collation, 852 charges for, when barred, 2272 APPROVAL, instrument of notoriety subject to, 72 adoption subject to, 354 when decisions of family council subject to, 458 guardian cannot compromise without, 467 INDEX. 523 APPROVED, when must be written on notes, etc., 1326 ARCHITECTS. See Jobs. responsibility in case of destruction, 1792 cannot ask for increase in price, 1793 when released from guarantee, 2270 ARCHIVES, register to be deposited with, 49 ARREARS. See Interest and Payment of Annuities. rights of creditor in case of joint and several liability, 1212 form part of community, 1401 are charged to community, notwithstanding clause of separation, 1512 when barred, 2277 ASCENDANTS. See Division of Successions. notice of respectful summons to ascendants, 154 no notice reijuired if ascendant absent, 155 marriage prohibited between descendants and, 161 notices of opposition to marriage made by, 176 ascendants pay no damages if opposition vacated, 179 children owe support to, 205 ascendants of unworthy heir not bound to denounce him, 728 how succession devolves if no ascendants in one line, 733 no representation in favor of, 741 rights of succession of, 746 when they inherit articles given by them to their children, 747 rights of natural child when no ascendant, 757 when can take from minors, 907 portion of property reserved to, 915 what portion of property can be disposed of if none exist, 916 can accept donation for minor, 935 may divide their property among descendants, 1075 ASSETS. See Community. ASSIGNMENT. See Novation. how co-heir may exclude assignee from division, 841 when action for rescission of division does not lie in case of, 889 what is assignment of property, 1265 kinds of, 1266 definition of voluntary, 1267 judicial, 1268 effects of judicial, 1269 further effects of judicial, 1270 depositary in bad faith loses right of, 1945 ASSIGNMENT OF CLAIMS AND INCORPOREAL RIGHTS, how delivery takes place, 1689 how assignee seized, 1690 payment by debtor before notice of, 1691 what it includes, 1692 524 INDEX. ASSIGNMENT OF CLAIMS AND INCORPOREAL EIGHTS- amtinticd. warranty, 1693 liability for solvency of debtor, 1694 when solvency of debtor warranted, 1695 of hereditary rights, 1696 income or property received to be returned) 1697 purchaser must reimburse payments made, 1698 how debtor can be released, 1699 when claim is contested, 1700 special provisions, 1701 ASSISTANT GUARDIAN. See Guaedians. required in every case of guardianship, 420 appointed by family council, 421 when appointed immediately after guardian, 422 guardian cannot vote for, 423 duties in case of vacancy in guardianship, 424 when his duties cease, 425 special provisions applying to, 426 appointment to interdicted persons, 505 provisions of guardianship applying to interdicted persons, 509 when compelled to have inventory made, 1442 is bound to see that inscriptions are made, 2137 ASYLUMS, placing interdicted persons in, 510 ATTACHMENT, how beneiiciary heir must pay in case of, 808 when personal property to be sold in case of, 826 interrupts prescription, 2244 ATTORNEY. See Rbpuuho's Attorney. ATTORNEY-IN-FACT. See Power op Attorney. AUNTS. See Uncles and Aunts. AUTHENTICITY. See Public Instruments. AUTHORITY. See Pateuxal Authority and Consent. AUTHORIZATION. See Consent. AVOIDANCE. See Cancellation and Nullity. BAD CONSTRUCTION. See Construction. BAD FAITH, heirs forfeit benefit of inventory when in, 801 person receiving payment must return amount in case of, 1378 person to whom thing returned must make good expenses, 1381 cannot be set up after prescription of thirty years, 2262 INDEX. 525 BAKERS, privileged claim of, 2101 BALANCE due by guardian bears interest, 474 when compensation due for real estate exchanged during marriage, rules of division of community in case of, 1476 BALCONIES, what distance to be left, 678 how distance counted, 680 BANKER, engagements when a minor, 1308 notice to be given in case of separation of property, 1445 BANKRUPTCY, how obligation depending upon time aifected, 1188 capital of perpetual annuity becomes due in case of, 1913 surety can proceed against debtor, 2032 BARRELS, when real estate by destination, 524 BASTARDS. See Natural Childebn. BATHS. See Floating Baths. BEAMS, nature of repairs for replacing of beams, 606 placing beam on party wall, 657 BEDS are furnishing movables, 534 BEEHIVES, when real estate by destination, 524 BENEFIT OF DIVISION, when debtors cannot set up, 1203 BENEFIT OF INVENTORY, how obtained, 793 an inventory must be made, 794 periods for heir to make inventory and decide as to acceptance 795 court may order sale of certain articles, 796 heir cannot be compelled to assume capacity as such, 797 heir can ask for more time, 798 how costs paid, 799 how long heir retains right to become beneficiary heir, 800 when heir forfeits benefit of inventory, 801 effects of, 802 526 INDEX. BENEFIT OF INVENTORY— craJraMeti. beneficiaiy heir has administration of property, 803 his responsibility for administration, 804 how personal property sold, 805 how real estate sold, 806 heir may be compelled to give security, 807 how heir must pay in case of attachment, 808 rights of creditors, 809 expenses for seals, how paid^ 810 BETTING is a contingent contract, 1964 no action lies for payment, 1965 no claim in case of voluntary payment, 1967 BIRTHS. See Certificates op Civil Status. declaration of, how made, 55 by whom made, 56 what certificate shall contain, 57 wliat to be done if new born child found, 58 how certificate drawn at sea, 39 deposit of certificate drawn at sea, 60 final deposit of such certificates, 61 guardian cannot resign on account of, 437 how donation affected by, 953 revocation of donation in consequence of, 960 revocations between husband and wife in consequence of, 1096 BOARDING-HOUSE KEEPERS, privileged claim of, 2101 BOATS ai-e personal property, 531 BOILERS, when real estate by destination, 524 BOLTS, repairs to, incumbent upon tenant, 1754 BOOKS, when word " movable " does not include, 533 entries in books of merchants, what proof, 1329 merchants' books are proof against them, 1330 how binding as proofs, 1331 BOUNDARIES, marking and expense of same, 646 BRANCHES, when reaching over must be cut, 673 BREACH OF TRUST, person guilty of, excluded from guardianship, 444 INDEX. 527 BREAKS, length of lease oi amble lands, 1774 BROTHERS AND SISTERS, man-iage prohibited between, 161 when they can oppose marriage, 174 to form part of family Goimcil, 408 of unworthy heir not obliged to denounce him, 728 how degrees of relationship counted, 738 when submitted to obligation to return, 1049 BUILDINGS are real estate, 518 rights of usufructuary in case of destruction, 624 when owner responsible for injuries caused by destruction of, 1386 BULLION, loan in bullion not subject to rules applying Co other loans 1896 how such loan returned, 1897 BULWARKS, form part of public domain, 540 when they belong to the State, 541 BURIAL cannot take place without permit, 77 BUTCHERS have privileged claim, 2101 BUYER. See Pukohasee. CALCULATION, en-ors of, in compromise to be corrected, 2058 CALVES, when they belong to lessor, 1831 CANCELLATION. See Moutgage and Nullity. fulfilment of resolutive condition cancels obligation, 1183 of sale for failure to deliver, 1610 when action for to be brought by purchaser, 1622 when obtained if purchaser partly ejected, 1636 on account of non-apparent servitudes, 1638 when purchase price unpaid, 1654 lease is cancelled by total destruction of property, 1722 lease may be cancelled for wrongful use, 1729 obligation of lessee in case of, 1760 when lessor can have lease of country property cancelled, 1766 life annuity can be cancelled for want of security, 1977 how inscription of mortgage cancelled, 2157 papers to be deposited for their cancellation, 2158 how applied for, 2159 must be ordered by the court, 2160 action for cancellation of inscription in excess, 2161 528 INDBX. CAPACITY. See Minors, JIaeried Women, and Natural Children. for making donations or wills, 901 all persons capable excepting those prohibited by law, 902 who is capable of receiving by donation or will, 906 disguised liberalities are void, 911 is necessary to make contract valid, 1108 all persons not prohibited by law can make contract, 1123 persons incapable of contracting, 1124 when contract can be attacked for want of, 1125 required to make valid payment, 1238 what necessary to make a tender, 1258 for novation, 1272 for general partnerships, 1840 CAPITA (PER) division in case of representation, 743 how descendants inherit, 745 how ascendants inherit, 746 when relatives inherit, 753 CAPITAL, emancipated minor cannot receive, 482 when person restricted from receiving, 499 spendthrift prohibited from receiving, 513 payment cannot be imputed to if interest due, 1254 to be returned if received in bad faith, 1378 powers of husband upon dotal property, 1549 when perpetual annuity becomes due, 1913 effect of failure to pay annuity, 1978 CARPENTERS. See Jobs and Workmen. remedies at law, 1798 subject to certain rules, 1799 CARRIERS BY LAND OR WATER, obligations of, 1782 ci s. responsibility in case of loss or injuries, 1784 must keep books, 1785 subject to special regulations, 1786 have privileged claim, 2102 CASH not included in word movable, 533 sale or donation of house, 536 rights of usufructuary, 587 how collation made, 869 CATTLE. See Leases. liability of usufructuary in case of loss of, 616 included in donations or devises of land, 1064 lessee must place sufficient number on property, 1766 leases of, 1800 et s. lessee cannot dispose of without owner's consent, 1812 INDEX. 529 CAUSE, in obligations, 1131 need not be expressed, 1132 when illicit, 1133 CERTIFICATES OF CIVIL STATUS, what they shall state, 34 only to contain necessary statements, 35 parties may be represented, 86 who may act as witness, 37 to be read to parties, 38 how signed, 39 how recorded, 40 registers to be numbered and initialed, 41 no blanks ; corrections and additions to be approved, 42 registers when closed to be deposited, 43 papers to be deposited, 44 any person can obtain extracts ; faith due to them, 45 how proof made if there are no registers, 46 faith due to foreign certificates, 47 validity of foreign certificates relating to French people, 48 how mentioned in margin of other certificate, 49 penalties applying to public officers, 50 responsibility of person with whom registers are deposited, 51 damages for alterations, forgeries, etc. , 52 registers to be examined, 53 right of parties to attack judgments relating to, 54 certificates of birth. See Birth, 55 et s. marriage. See Maekiage, 63 et s. death. See Dbath, 77 ets. certificates relating to soldiers, sailors, etc., 93 certified copies of such certificates to be made, 94 registers to be kept, 95 registers to be numbered and initialed, 96 publications for marriage, how made in special cases, 97 provisions applying to natural children, 98 proceedings for correcting, 99 effect of judgment ordering correction, 100 how judgments recorded, 101 CESSPOOLS, distance to be left, 674 cleaning of, by whom paid for, 1756 CHILDREN. See Acknowledgement, Adoption, Adultbeous AND InCBSTDODS CHILDREN, APPRBNTICESHIP, GUARniANS, Marriage, Paternal Authority, Portion of Property WHICH CAN BE DISPOSED OF, and SUPPORT. _ to be presented to officer of civil status'after birth, 55 when new born child found, 58 CHIMNEYS, building chimney against party wall, 657 distance to be left in building, 674 CHINA, ,. ■,,„.,, to what extent included in words "furnishing movables, 56i C.S. M M 530 INDEX. CITIZEN'S. See Nationamtt and IJatiiealization. who are, 8 who may become, 8, 9, 10 CIVIC RIGHTS, governed by constitutional and electoral laws, 7 effect of civil death, 25 CIVIL DEATH, (abolished, see art. 22 to 33, and note d, page 10.) CIVIL EIGHTS are independent of political rights, 7 how lost, 17 how recovered, 18 CIVIL STATUS. See Certificates of Civil Status and Pos- session d'Etat. CLAIMS. See Recovery. privileged claims on personal property generally, 2101 certain articles, 2102 CLAUSE, how construed when susceptible of two interpretations, 1157, 1158 customary clauses to be supplied in contracts, 1160 must be interpreted in connection with each other, 1161 penal clause, 1226 CLEANING. See Cesspools and Wells. CLERKS, of notaries cannot be witnesses to wills, 975 CLOTHES, not included in word movable, 533 usufruct of clothes, 589 right of wife to take back, 1492 this right does not belong to heirs, 1495 right of wife to take back in dotal system, 1566 CO-GUARDIAN, when required, 417 COHABITATION, effect in action for annulment of marriage, 181 when husband may disown child, Z12 et s. CO-HEIRS. See Heirs. COLLATERAL. See Successions. INDEX. 531 COLLATIONS, what the heirs must return, 829 heirs must collate, 843 to what extent due, 844 heir who renounces succession not obliged to collate, 845 when donee not a presumptive heir, 846 when exemption presumed, 847 son not bound to collate, 848 exemption in favour of husband or wife, 849 when made, 850 when due, 851 expenses exempted, 852 certain profits exempted, 853 not due in certain co-partnerships, 854 when building not subject to, 855 when revenue and interest due, 856 only due by heu' to co-heir, 857 how made, 858 when made in kind, 859 by taking less, 860 expenses for improvements to be counted, 861 preservation likewise counted, 862 donee must account for damages and injuries, 863 what due, if real estate has been conveyed, 864 efifect of, when made in kind, 865 how made of surplus, 866 heir to retain enjoyment of real estate, 867 of personal property made by taking less, 868 of money, how made, 869 to community. See Community. COLONIES, property of minor in colonies, how administered, 417 COMMENCEMENT OF PROOF, what it results from, 324 transcription can only be used as, 1336 COMMISSION. See Powek of Attoenet. COMMON CAREIERS. See Oabiiibes by Land ok Watek. COMMON REPUTE, when wife can prove value of property by, 1415 proof by, as to property of community, 1442 coming to husband or wife, 1504 COMMONAGE, right to, lost, 648 COMMUNITY OF PROPERTY BETWEEN HUSBAND AND WIFE, when it commences, 1399 legal community, 1400 M M 2 532 INDEX. COMMUNITY OF PROPERTY BETWEEN HUSBAND AND WIFE — continued. Assets of: what composed of, 1401 what real estate considered an acquest, 1402 cut of wood and products of quarries forni part of, 1403 what real estate does not foim part, 1404 donations of real estate do not form part, 1405 certain other real estate does not form part, 1406 real estate acquired by exchange, 1407 purchased, 1408 Liabilities of: what they consist in, 1409 responsibility as to debts, 1410 debts of successions of personalty, 1411 real estate, 1412 coming to wife, 1413 succession, partly of personalty, partly of realty, 1414 how proof made if no inventoi-y, 1415 rights of creditors, 1416 to what property creditors limited, 1417 what rules apply to debts in connection with donations, 1418 rights of wife's creditors, 1419 certain debts contracted by the wife, how paid, 1420 Administration of, and Effects of Acts of Hvsbavd and Wife : husband has sole management, 1421 what he can dispose of, 1422 donation made by husband, how limited, 1423 fines imposed upon the husband, how enforced, 1424 sentences against the husband and wife, how carried out, 1425 validity of acts performed by wife, 1426 wife cannot bind herself, 1427 husband manages individual property of wife, 1428 effect of leases made by the husband, 1429 when leases void, 1430 when wife only presumed bound as surety, 1431 remedy of husband against wife for his guarantee, 1432 proceeds of sale of real estate, how taken, 1433 re-investment of proceeds, 1434 declaration as to re-investment, 1435 proceeds of sale, how taken, 1436 when husband or wife owe repayment, 1437 contribution to endowment of child, 1438 how dowry given to child charged, 1439 dowiy to be guaranteed, 1440 Dissolution of, and its Consequences : how dissolved, 1441 effect of failure to make inventory, 1442 when wife entitled to separation of property, 1443 when separation void, 1444 notice of separation necessary, 1445 when wife's creditors can apply for separation, 1446 husband's creditors can attack separation, 1447 wife's obligations after separation, 1448 management of wife's property after separation, 1449 husband's responsibility after separation, 1450 when community can be re-established, 1451 rights of wife during separation, 1452 INDEX. 533 COMMUNITY OF PEOPERTY BETWEEN HUSBAND AND WIFE— co7i