Louisiana Notary

A Civil Law Tradition

Sale

Sale – Rescission of sale for lesion beyond moiety

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Sale – Rescission of sale for lesion beyond moiety

Art. 2589. Rescission for lesion beyond moiety. The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable. Lesion can be claimed only by the seller and only in sales of corporeal immovables. It cannot be alleged in a sale made by order of the court. The seller may invoke lesion even if he has renounced the right to claim it.

Art. 2590. Time of valuation for determination of lesion. To determine whether there is lesion, the immovable sold must be evaluated according to the state in which it was at the time of the sale. If the sale was preceded by an option contract, or by a contract to sell, the property must be evaluated in the state in which it was at the time of that contract.

Art. 2591. Option of buyer to supplement price. When a sale is subject to rescission for lesion the buyer may elect either to return the immovable to the seller, or to keep the immovable by giving to the seller a supplement equal to the difference between the price paid by the buyer and the fair market value of the immovable determined according to the preceding Article.

Art. 2592. Lesion, return of fruits by buyer and payment of interest by seller. If the buyer elects to return the immovable he must also return to the seller the fruits of the immovable from the time a demand for rescission was made. In such a case, the seller must return to the buyer the price with interest from the same time. If the buyer elects to keep the immovable he must also pay to the seller interest on the supplement from the time a demand for rescission was made.

Art. 2594. Lesion, action against vendee who has resold the immovable. When the buyer has sold the immovable, the seller may not bring an action for lesion against a third person who bought the immovable from the original buyer. In such a case the seller may recover from the original buyer whatever profit the latter realized from the sale to the third person. That recovery may not exceed the supplement the seller would have recovered if the original buyer had chosen to keep the immovable.

Art. 2595. Peremption of action for lesion. The action for lesion must be brought within a preemptive period of one year from the time of the sale.

Art. 2596. Lesion, action against vendee who has granted a right on the immovable. When the buyer has granted a right on the immovable to a third person, rescission may not impair the interest of that person. The seller who receives back the immovable so encumbered is entitled to recover from the buyer any diminution in value suffered by the immovable because of the right of the third person. That recovery may not exceed ‘the supplement the seller would have recovered if the buyer had not encumbered the immovable and had decided to keep it.

Art. 2597. Condition in which property is returned to seller; reimbursement of buyer for improvements. When rescission is granted for lesion the seller must take back the immovable in the state it is at that time. The buyer is not liable to the seller for any deterioration or loss sustained by the immovable before the demand for rescission was made, unless the deterioration or loss was turned into profit for the buyer. The seller must reimburse the buyer for the expenses of the sale and for those incurred for the improvement of the immovable, even if the improvement was made solely for the convenience of the buyer.

Art. 2599. Buyer’s right of retention pending reimbursement. The buyer may retain possession of the immovable until the seller reimburses the buyer the price and the recoverable expenses.

Art. 2600. Divisibility of action in lesion among joint sellers and successors, joinder. If more than one seller concurred in the sale of an immovable owned by them indivision, or if each of them sold separately his share of the immovable, each seller may bring an action for lesion for his share. Likewise, if a seller died leaving more than one successor, each successor may bring an action for lesion individually for that share of the immovable corresponding to his right.

Sale – Dissolution of sale

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Sale – Dissolution of sale

Art. 2561. Dissolution of sale for nonpayment of price. If the buyer fails to pay the price, the seller may sue for dissolution of the sale. If the seller has given credit for the price and transfers that credit to another person, the right of dissolution is transferred together with the credit. In case of multiple credit holders all must join in the suit for dissolution, but if any credit holder refuses to join, the others may subrogate themselves to his right by paying the amount due to him. If a promissory note or other instrument has been given for the price, the right to dissolution prescribes at the same time and in the same period as the note or other instrument.

Art. 2562. Dissolution of sale of immovables for nonpayment of price; extension of time for payment. When an action is brought for the dissolution of the sale of an immovable and there is no danger that the seller may lose the price and the thing, the court, according to the circumstances, may grant the buyer an extension of time, not in excess of sixty days, to make payment, and shall pronounce the sale dissolved if.the buyer fails to pay within that time. When there is such a danger, the court may not grant the buyer an extension of time for payment.

Art. 2563. Payment of price after expiration of term but prior to default When the contract of sale of an immovable expressly provides for dissolution in case of failure to pay the price, the buyer still has the right to pay, in spite of the express dissolution clause, for as long as the seller has not given the buyer notice that he avails himself of that clause or has not filed suit for dissolution.

Art. 2564. Dissolution of sale of movables. If the thing is movable and the seller chooses to seek judicial dissolution of the sale because of the failure of the buyer to perform, the court may not grant to the buyer any extension of time to perform.

Sale – Warranty of fitness for ordinary use

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Sale – Warranty of fitness for ordinary use

Art. 2524. Thing fit for ordinary use. The thing sold must be reasonably flt for its ordinary use. When the seller has reason to know the particular use the buyer intends for the thing, or the buyer’s particular purpose for buying the thing, and that the buyer is relying on the seller’s skill or judgment in selecting it, the thing sold must be fit for the buyer’s intended use or for his particular purpose. If the thing is not so flt, the buyer’s rights are governed by the general rules of conventional obligations.

Sale – Warranty against redhibitory defects

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Sale – Warranty against redhibitory defects

Art. 2520. Warranty against redhibitory defects. The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Art. 2548. Exclusion or limitation of warranty; subrogation. The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer. A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have. The buyer is subrogated to the rights in warranty of the seller against other persons, even when the warranty is excluded.

Art. 2489. Condition of thing at time of delivery. The seller must deliver the thing sold in the condition that, at the time of the sale, the parties expected, or should have expected, the thing to be in at the time of delivery, according to its nature.

Sale – Warranty of possession

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Sale – Warranty of possession

Art. 2500. Eviction, definition, scope of warranty. The seller warrants the buyer against eviction, which is the buyer’s loss of, or danger of losing, the whole or part of the thing sold because of a third person’s right that existed at the time of the sale. The warranty also covers encumbrances on the thing that were not declared at the time of the sale, with the exception of apparent servitudes and natural and legal nonapparent servitudes, which need not be declared. If the right of the third person is perfected only after the sale through the negligence of the buyer, though it arises from facts that took place before, the buyer has no claim in warranty.

Art. 2502. Transfer of rights to a thing. A person may transfer to another whatever rights to a thing he may then have, without warranting the existence of any such rights. In such a case the transferor does not owe restitution of the price to the transferee in case of eviction, nor may that transfer be rescinded for lesion. Such a transfer does not give rise to a presumption of bad faith on the part of the transferee and is a just title for the purposes of acquisitive prescription. If the transferor acquires ownership of the thing after having transferred his rights to it, the after-acquired title of the transferor does not inure to the benefit of the transferee.

Art. 2503. Modification or exclusion of warranty, seller’s liability for personal acts, restitution of price in case of eviction. The warranty against eviction is implied in every sale. Nevertheless, the parties may agree to increase or to limit the warranty. They may also agree to an exclusion of the warranty, but even in that case the seller must return the price to the buyer if eviction occurs, unless it is clear that the buyer was aware of the danger of eviction, or the buyer has declared that he was buying at his peril and risk, or the seller’s obligation of returning the price has been expressly excluded.

Sale – Delivery of movables

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Sale – Delivery of movables

Art. 2603. Obligation to deliver conforming things. The seller must deliver to the buyer things that conform to the contract. Things do not conform to the contract when they are different from those selected by the buyer or are of a kind, quality, or quantity different from the one agreed.

Art. 2604. Buyer’s right of inspection. The buyer has a right to have a reasonable opportunity to inspect the things, even after delivery, for the purpose of ascertaining whether they conform to the contract.

Art. 2605. Rejection of nonconforming things by the buyer. A buyer may reject nonconforming things within a reasonable rime. The buyer must give reasonable notice to the seller to make the rejection effective. A buyer’s failure to make an effective rejection within a reasonable time shall be regarded as an acceptance of the things.

Art. 2606. Buyer’s acceptance of nonconforming things. A buyer who, with knowledge, accepts nonconforming things may no longer reject those things on grounds of that nonconformity, unless the acceptance was made in the reasonable belief that the nonconformity would be cured.

Art. 2607. Buyer may accept part of things delivered. Out of a quantity of things delivered by the seller, the buyer may accept those things that conform to the contract and form a commercial unit and may reject those that do not conform. The buyer must pay at the contract rate for any things that are accepted.

Art. 2610. Cure of nonconformity. Upon rejection of nonconforming things by the buyer, the seller may cure the nonconformity when the time for performance has not yet expired or when the seller had a reasonable belief that the nonconforming things would be acceptable to the buyer. In such a case the seller must give reasonable notice of his intention to cure to the buyer.

Sale – Delivery of immovables

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Sale – Delivery of immovables

Art. 2491. Immovables, extent of delivery. The seller must deliver to the buyer the full extent of the immovable sold. That obligation may be modified in accordance with the provisions of the following Articles.

Art. 2492. Sale of immovables at a price per measure. If the sale of an immovable has been made with indication of the extent of the premises at the rate of so much per measure, but the seller is unable to deliver the full extent specified in the contract, the price must be proportionately reduced. If the extent delivered by the seller is greater than that specified in the contract, the buyer must pay to the seller a proportionate supplement of the price. The buyer may recede from the sale when the actual extent of the immovable sold exceeds by more than one twentieth the extent specified in the contract.

Art. 2494. Sale of immovable for lump price. When the sale of an immovable has been made with indication of the extent of the premises, but for a lump price, the expression of the measure does not give the seller the right to a proportionate increase of the price, nor does it give the buyer the right to a proportionate diminution of the price, unless there is a surplus, or a shortage, of more than one twentieth of the extent specified in the act of sale. When the surplus is such as to give the seller the right to an increase of the price the buyer has the option either to pay that increase or to recede from the contract.

Art. 2495. Sale of a certain and limited body or of a distinct object for a lump price. When an immovable described as a certain and limited body or a distinct object is sold for a lump price, an expression of the extent of the immovable in the act of sale does not give the parties any right to an increase or diminution of the price in case of surplus or shortage in the actual extension of the immovable.

Art. 2497. Restitution of price and expenses in case of rescission. When the buyer has the right to recede from the contract the seller must return the price, if he has already received it, and also reimburse the buyer for the expenses of the sale.

Art. 2498. Prescription of actions for supplement or diminution of price or for dissolution. The seller’s action for an increase of the price and the buyer’s actions for diminution of the price or dissolution of the sale for shortage or excessive surplus in the extent of the immovable sold prescribe one year from the day of the sale.