The Louisiana Civil Code is a legal institution worthy of appreciation and preservation. Implicit in the code's structure and technique is a faith in human reason. The Civil Code stands for the proposition that the basic rules of self-governance and be organized in a single book for the benefit of
all citizens. Even as the Civil Code is transformed in response to social changes, the idea of civil codification as a social blueprint will survive. The Civil Code, because it is highly adaptable, will still have a place in society far more complex than that of the early Louisianians who began the fight to preserve it nearly 200 years ago.
“The structure of the Civil Code consisted of a Preliminary Title of the General Definitions of Rights and the Promulgation of the Laws, and three books: Book I Of Persons, Book II Of Things and of the Different Modifications of Property, and Book III Of the Different Modes of Acquiring the Property of Things. As the civil codes had three books, they also had three ideological pillars: freedom of contract, private ownership of property, and family solidarity.” -The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
“Freedom of contract and private property were considered necessary to overthrow the complex restraints of feudalism. To master their destiny, so went the argument of the bourgeoisie, men had to be free to exploit the wealth of the land. Absolute enjoyment of land formerly subjected to the
hierarchical bonds of lord and vassal was seen as indispensable to the development of agriculture, and unrestricted freedom contract for the fruits of human labor was equally important.
Consistent with these ideas was the conclusion in the general formula of article 2315 that one had to pay for harm he caused another in a reprehensibly careless manner. This articulation of negligence liability represented an accommodation of the broad range of free activity desired by the bourgeoisie to the concept of individual responsibility.” -The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
“Both the French and Louisiana Civil Codes, in their treatments of conventional obligations (or contracts), express a commitment to human autonomy. Opposed to the feudal view that social status dictated men’s fortunes, the code drafters enshrined in their work the doctrine of freedom
of contract: Men were the best judges of their own interests and could contract to realize them. According to Louisiana Civil Code article 1901, the contract was the law between the parties; when parties agreed on a course of action, they made law for themselves.” -The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
“According to both the French and Louisiana Civil Codes, a buyer’s honest mistake as to the quality of his purchase justified cancellation of his contract. Today there is a warranty remedy similar to redhibition everywhere else in the United States, but it is a product of relatively recent statutory inroads on the doctrine of caveat emptor. By contrast, Louisiana citizens, thanks to their Civil Code, have availed themselves of a similar warranty action since before Louisiana joined the Union.”
-The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
Left image: Dispute between Cochran & Ray and Jean Gravier regarding delivery of 59,000 bricks on May 19, 1803. On April 21, 1807, Judge L. Moreau Lislet ruled for the plaintiffs in the amount of $649 plus suit costs.
“Inspired by their French counterparts, the Louisiana drafters took as their cardinal principle that private property was inviolable. Rejecting the feudal system under which a hierarchy of persons was tied to a hierarchy of lands
, they declared that all citizens were equal in terms of the ownership of property.
The absolute character of the right of ownership is qualified only by the rule that an owner must not abuse his rights or allow his property to create a nuisance for the rest of the community.
The doctrine of comparative negligence—only recently developed in common law jurisdictions—has been in the Louisiana Civil Code since the early 1800s. Under traditional common law, an injured plaintiff whose own negligence, however slight, contributed to his injury was barred from any recovery whatsoever.
The notion of things under this form of strict “custodial” liability is broad and includes items such as animals, skis and even cars. In common law jurisdictions, tort actions involving damage caused by things in the custody of another would be decided by the usual reference to fault-based negligence liability: the plaintiff would have to prove that the defendant, because he failed to exercise reasonable care, was liable for the injuries.”
-The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
Image: E. D. White House, state commemorative area, near Labadieville, Assumption Parish, July 24, 1975. Courtesy of Center for Louisiana Studies.
“The drafters of the Civil Code perceived the family as the basic cell of society and the protector of the future of society. Many people consider family solidarity the most important value promoted by the Louisiana Civil Code. This value is reflected particularly in the provisions concerning the economic rights of family members to the wealth accumulated by a member.
The Civil Code refreshingly promotes an attitude of responsibility to the family in disposition of property. Whereas in other states familial financial responsibilities do not go beyond what is necessary for periodic support on a parent and generally ensures that a spouse will receive family capital in the of community property and that the children will receive fixed shares regardless of need.
Although responsibility to a person’s family restricts his autonomy, the code’s restrictions are reasonable, permitting considerable latitude to dispose of property outside the family circle, to favor one child over another, and to alter the share of capital to which the spouse is entitled. The Civil Code thus blends responsibility and autonomy, whereas in other states the balance tips towards autonomy. Two features of the Civil Code that best reflect family economic solidarity are community property and the rights of forced heirs.
Unless the spouses agree otherwise in a solemn contract, the code subjects them to a system of community property. Under this system, married people share the ownership of all property acquired during the marriage through the labor or earnings of either spouse. Even if one spouse devotes himself or herself completely to homemaking and childrearing, that spouse will end up owning half of the property acquired with the other spouse’s earnings.
The notion of shared ownership in income and earnings during marriage is largely unknown in states other than the eight community property states. Upon dissolution of the marriage by either death or divorce, each spouse (or a spouse’s heirs) receives half of the shared property.
Unlike any other state, the Louisiana Civil Code provides that children and, to some extent, parents are forced heirs. This means that a person cannot dispose of his entire estate by gift or will to the prejudice of his heirs. They are entitled to a share of the decedent’s estate. If a man, by his will, tried to disown his children, the courts would revise the disposition to strangers to assure all his children their codal shares.
Comparison of Louisiana with other states will probably disclose that parental authority over children is stronger under the Civil Code than elsewhere. Because parents enjoy the usufruct of their children’s estate, they may use the income of the children’s estate as if it were their own. Consistent with relatively greater parental authority over children is the greater responsibility of parents for the damage caused by their children.”
-The Louisiana Civil Code: A Humanistic Appraisal by Tulane Law School, 1981
Right image: Portrait of Montegut family New Orleans 1790s. José Francisco Xavier de Salazar y Mendoza, c. 1750 - 1802, Public domain, via Wikimedia Commons.
Left image: A man and woman in elaborate wedding clothes. Verso stamped: "W. A. Bonnet; Leading Artist. Broad St. Lake Charles, LA. High Grade Photographs, Crayons, Pastels and Oil Portraits." McNeese State University Historic Photographs of Southwest Louisiana.
