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Mandate and Representation – Procuration may be conditional on disability

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Mandate and Representation – Procuration may be conditional on disability

R.S. 9:3890 Conditional procuration. A. The term “conditional procuration” means a written document stating that the procuration becomes effective upon the disability of the principal.

B. In a conditional procuration, the disability of a principal shall be established by an authentic act as described in Subsection C, stating that due to any infirmity, the principal is unable consistently to make or to communicate reasoned decisions regarding the care of the principal’s person or property.

C. The authentic act shall be signed by two physicians licensed to practice medicine by the Louisiana State Board of Medical Examiners who have personally examined the principal. However, if the executed conditional procuration so provides, the authentic act may be signed by the attending physician who is licensed to practice medicine by the Louisiana State Board of Medical Examiners and the agent appointed in the conditional procuration.

D. A conditional procuration which has been entered into under the provisions of this Section and which has become effective as provided in this Section shall have the same effectiveness as any other procuration.

E. Except as otherwise specifically provided in this Chapter, a conditional procu­ration which becomes effective upon a determination of disability shall be subject to all of the provisions of the Louisiana Civil Code and all other provisions of law which govern procuration.

Mandate and Representation – Procuration defined

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Mandate and Representation – Procuration defined

Art. 2987. Procuration defined; person to whom addressed. A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations. The procuration may be addressed to the representative or to a·person with whom the representative is authorized to represent the principal in legal relations.

Revision comments-1997. (a) This provision is new. It is based on Article 2985 of the Louisiana Civil Code of 1870. The civilian term “procuration” has been used instead of the colloquial “power of attorney,” which is a common-law term of art. This usage avoids confusion with common-law institutions and the designation of the representative as “attorney.”

(b) A procuration is a “unilateral juridical act” that confers on the representative authority to represent the principal in legal relations. It differs from a mandate which is a “contract” that confers on the mandatary authority to transact one or more affairs for the principal. See Civil Code Article 2989 (Rev.1997). infra.

(c) The procuration is not required to be in a particular form. Nevertheless, when the law prescribes a certain form for the authorized act, a procuration authorizing the act must be in the same form. See Civil Code Article 2993 (Rev. 1997), infra.

(d) The recipient of the procuration does not bind himself to do anything. However, if he accepts the procuration or acts accordingly, a contract may be formed between the principal and the representative. This contract may be a mandate or another nominate contract.

(e) The term “legal relations” includes creating, modifying, or terminating “legal relations.”

Art. 2988. Applicability of the rules of mandate, A procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration.

Mandate and Representation – Representation defined

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Mandate and Representation – Representation defined

Art. 2985. Representation. A person may represent another person in legal relations as provided by law or by juridical act. This is called representation.

Art. 2986. The authority of the representative The authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by the unilateral juridical act of procuration.

Revision Comments – 1997 (a) In the Louisiana Civil Code of 1870, the words “power of attorney,” “letter of attorney,” “mandate,” “procuration,” and “agency” were used interchangeably. However, each of these words also has a technical meaning that differentiates one from another. Following the legislative technique employed in modern civil codes, in this revision, the word “mandate” applies exclusively to the “contract of mandate,” whereby a person, called principal, authorizes another person, called man­datary, to transact an affair on behalf of the principal. The word “agency” has not been used in this revision, in an effort to prevent confusion with the common-la-w institution of agency. The words “letter of attorney” and “power of attorney” in the Louisiana Civil Code of 1870 are a translation from the French “procuration.” These words connote a unilateral juridical act whereby a person, called principal, confers authority on another person to represent him in legal relations. Thus, a person may have authority to represent another person by virtue of a contract of mandate or by virtue of a unilateral juridical act.

Lease – Inapplicability to lease of immovables

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Lease – Inapplicability to lease of immovables

§3304. Exclusions. A. This Chapter shall not apply to leases of immovable property. This Chapter shall, however, continue to apply to leases of movable property which subsequently becomes a component part of an immovable or which are immobilized by declaration as provided under Articles 466 and 467 of the Louisiana Civil Code, in which case the lessor shall retain all legal rights to and ownership of the leased equipment notwithstanding its immobilization. This Chapter shall also continue to apply to leases of equipment which are subsequently incorporated into other movable property not otherwise subject to the lease, in which case the lessor shall retain all legal rights to and ownership of the leased equipment notwithstanding Article 510 of the Louisiana Civil Code.

B. This Chapter shall not apply to leases of incorporeal movables or licenses of contractual or proprietary rights, such as licenses for the use of computer software,trade names, copyrights, or franchises.

§3310. Financed leases. A. Except as specifically provided in this Chapter, financed leases are subject to Title IX of Book III of the Civil Code entitled “Lease.” Financed leases entered into after Chapter 9 of the Louisiana Commercial Laws becomes effective are a type of secured transaction in favor of the lessor, and thus are additionally subject to R.S. 10:9-101, et seq.

B. Notwithstanding the fact that a financed lease creates a security interest under Chapter 9 of the Louisiana Commercial Laws, the lessor under a properly perfected financed lease shall retain full legal and equitable title and ownership in and to the leased equipment until such time as the lessee exercises his option or complies with his obligation to purchase the leased equipment from the lessor as provided under the lease agreement. The provisions of this Chapter shall further not affect present taxation of financed leases.

Lease – True lease

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Lease – True lease

§3309. True leases. Except as specifically provided in this Chapter, true leases are subject to Title IX of Book III of the Civil Code entitled “Of Lease.”

§3306. Definitions. (26)(a) “True lease” means a lease entered into before January 1, 1990, under which:

(i) The lessee has no obligation to pay total compensation over the base lease term which is substantially equivalent to or in excess of the initial value of the leased property; or

(ii) The lessee does not have the option or obligation to become the owner of the leased property upon termination of the lease for no or nominal consideration.

(b) A true lease also means a lease entered into after January 1, 1990, that is not classified as a security interest as provided under R.S. 10:1-201(35).

(c) Consistent with R.S. 10:9-505, the filing of a financing statement by a lessor under a true lease shall not of itself result in such a lease being classified as a financed lease for purposes of this Chapter or otherwise.

Lease – Leases with an indeterminate term

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Lease – Leases with an indeterminate term

Art. 2727. Termination of lease with an indeterminate term. A lease with an indeterminate term, including a reconducted lease or a lease whose term has been established through Article 2680, terminates by notice to that effect given to the other party by the party desiring to terminate the lease, as provided in the following Articles.

Art. 2728. Notice of termination; timing. The notice of termination required by the preceding Article shall be given at or before the time specified below:

(1) In a lease whose term is measured by a period longer than a month, thirty calendar days before the end of that period;

(2) In a month-to-month lease, ten calendar days before the end of that month;

(3) In a lease whose term is measured by a period equal to or longer than a week but shorter than a month, five calendar days before the end of that period; and

(4) In a lease whose term is measured by a period shorter than a week, at any time prior to the expiration of that period.

A notice given according to the preceding Paragraph terminates the leas; at the end of the period specified in the notice, and, if none is specified, at the end of the first period for which the notice is timely.

Art. 2729. Notice of termination; form. If the leased thing is an immovable or is a movable used as residence, the notice of termination shall be in writing. It may be oral in all other cases. In all cases, surrender of possession to the lessor at the time at which notice of termination ·shall be given under Article 2728 shall constitute notice of termination by the lessee.

 

Lease – Leases with a fixed term

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Lease – Leases with a fixed term

Art. 2720. Termination of lease with a fixed term. A lease with a fixed term terminates upon the expiration of that term, without need of notice, unless the lease is reconducted or extended as provided in the fol­lowing Articles.

Art. 2721. Reconduction. A lease with a fixed term is reconducted if, after the expiration of the term, and without notice to vacate or terminate or other opposition by the lessor or the les­see, the lessee remains in possession:

(1) For thirty days in the case of an agricultural lease;

(2) For one week in the case of other leases with a fixed term that is longer than a week; or

(3) For one day in the case of a lease with a fixed term that is equal to or shorter than a week.

Art. 2722. Term of reconducted agricultural lease. The term of a reconducted agricultural lease is from year to year, unless the parties intended a different term which, according to local custom or usage, is observed in leases of the same type.

Art. 2723. Term of reconducted nonagricultural lease. The term of a reconducted nonagricultural lease is:

(1) From month to month in the case of a lease whose term is a month or longer;

(2) From day to day in’ the case of a lease whose term is at least a day but shorter than a month; and

(3) For periods equal to the expired term in the case of a lease whose term is less than a day.

Art. 2724. Continuity of the reconducted lease. When reconduction occurs, all provisions of the lease continue for the term provided in Article 2722 or 2723. A reconducted lease is terminated by giving the notice directed in Articles 2727 through 2729.

Art. 2725. Extension If the lease contract contains an option the term and the option is exercised, the lease continues for the term and under the other provisions stipulated in the option.

Art. 2726. Amendment. An amendment to a provision of the lease contract that is made without an·intent to effect a novation does not create a new lease.

Lease – Breach of contract

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Lease – Breach of contract

Art. 2719. Dissolution for other causes. When a party to the lease fails to perform his obligations under the lease or under this Title, the other party may obtain dissolution of the lease pursuant to the provisions of the Title of “Conventional Obligations or Contracts”.

Lease – Contracts with reservation of right to terminate lease

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Lease – Contracts with reservation of right to terminate lease

Art. 2718. Leases with reservation of right to terminate. A lease in which one or both parties have reserved the right to terminate the lease before the end of the term may be so terminated by giving the notice specified in the lease contract or the notice provided in Articles 2727 through 2729, which ever period is longer. The right to receive this notice may not be renounced in advance. In all cases, surrender of possession to the lessor at the time at which notice of termination shall be given under Article 2728 shall constitute notice of termination by the lessee.