« 上一頁繼續 »
person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.
ART. 1846.-- A contract, produced by violence or threats, is void, although the party, in whose favour the contract is made, did not exercise the violence or make the threats, and although he were ignorant of them,
ART, 1847.-Violence or threats are causes of nullity, not only where they are exercised on the contracting party, but also when the wife, the husband, the descend· ants or ascendants of the party are the object of them.
ART. 1848.–The mere reverential fear of a relation in the ascending line, where no violence has been offered, nor threats made, will not invalidate a contract.
ART, 1849.-No contract can be invalidated on an allegation of violence or threats, if it has been approved, either expressly after the violence or danger has ceased, or tacitly by suffering the time limited to elapse without causing it to be rescinded.
Art. 1850.-If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and by the circumstances of the case, are of this description.
ART. 1851.- But the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it. An arrest without cause of action, or a demand of bail in an unreasonable sum, or threats of such proceeding, by this rule invalidate a contract made under their pressure.
ART. 1852.- A contract made with one having no agency in the violence used, or the threats made for the purpose of delivering the party from the constraint un-
der which he is, or from the danger with which he is menaced, shall not be invalidated by reason of such violence or threats, provided the contract be made in good faith and without collusion with the offending party. A'contract to procure a rescue of person or goods from pirates or robbers, is an example of this rale.
ART. 1853.-All the above articles relate to cases where there may
be some other motive besides the violence or threats for making the contract. Where, however, there is no other cause for the contract, any threats, even of slight injury, will invalidate it.
Of Læsion. ART. 1854.-Læsion is the injury suffered by one, who does not receive a full equivalent for what gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition; for, in every commutative contract, equivalents are supposed to be given and received.
ART. 1855.-The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases :
1. In partition, where there is a difference in the value of the portions to more than the amount of one fourth to the prejudice of one of the parties;
2. In sales of immoveable property, the vendor may be relieved, if the price given is less than one half of the value of the thing sold; but the sale cannot be invalidated for læsion to the injury of the purchaser.
ART. 1856.-Læsion can be alleged by persons of full age in no other sale than one for immoveables, by which is meant whatever is immoveable by destination, includ
ing slaves, when sold with the plantations on which they labour.
ART. 1857.-Persons of fullage are relieved for læsion in no other contracts than those above expressed, not even in exchange, which bears some resemblance to the contract of sale.
ART. 1858.-Minors, not emancipated, are relievable against simple læsion in every species of contract. That is called simple læsion, in which the amount to be suffered by it, is not designated by law, as it is in the cases above mentioned of partition and sale between persons of full age.
ART. 1859. As to such contracts as they are, by virtue of their emancipation, authorized to make, they are entitled to no other relief against læsion than if they were of full age. As to all other contracts, which they can make only under certain formalities, they are in the same situation with other minors, and may have relief for simple læsion, or prosecute the action of nullity against the contract,
ART. 1860.-Læsion needs not be alleged to invalidate such contracts as are made by minors, either without the intervention of their tutors or curators, or with such intervention, but unattended by the forms prescribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, without any other proof than that of the minority the party and the want of formality in the act.
ART. 1861.-But in contracts made with minors, when duly authorized, and when all the forms of law have been pursued, on and alleging proving even simple læsion, they will be relieved with the exception of the cases provided for in the two next articles.
ART. 1862.-When all the formalities required by law for the alienation or the partition of the property of minors, or persons interdicted, have been fulfilled ,
the acts made for those purposes shall have the same persons of full force, as if they had been executed by age and sound mind.
ART. 1863.-No læsion whatever, even in the case of minors, con invalidate judicial sales or sales of insolvent's property made by syndics or other trustees. Sales, directed or authorized by courts of probates, are judicial sales under this provision.
ART. 1864. –When læsion is alleged to invalidate a partition or sale, the party alleging it must first prove the value of the property sold, in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of property of that description. He must then show how much the price given was less than such value; but if the price given was paid at longer periods than those usually given on such sales, the interest for the time exceeding such usual credit must be deducted from such price; or if the price was paid in shorter periods than those of such usual credit, then the interest for the time such payment has fallen short of the usual credit, shall be added to the price actually paid, and from a comparison of the price after these additions or deductions with the estimated value, the court shall determine whether, according to law applied to the circumstanles of the case, there is å læsion sufficient to invalidate the contract.
ART. 1865.- In all questions of læsion the value of that which was the subject of the contract at the time of making it, is the rule by which the læsion is to be ascertained. Even in the case of minors, changes in value by subsequent events are not to affect the contract.
ART. 1866.-If a minor should, at the time of the contract, declare himself of full age, it will be no bar to his obtaining relief against lasion.
ART. 1867.- A minor, who is a banker, factor, trader or artisan, is not relievable against læsion in contracts
made for the purpose of his trade or business, nor is he relievable against læsion in any of the stipulations of his marriage contract, if such contract be made with the consent and pursuant to the formalities in such case provided by law.
ART. 1868.--He is not relievable against obligations resulting from offences or quasi offences.
ART. 1869.-A ratification made by a person of full age of any contract made during his minority, cares all defects arising as well from the want of the necessary formalities as from the want of a proper consideration. No action for nullity on læsion can be brought after such ratification.
ART. 1870. - Actions for læsion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors.
ART. 1871.-In actions, brought for relief against a sale or partition made between persons of fall age, or in a like action, brought for læsion only, in a sale made by a minor or on his account, the purchaser may elect either to rescind the sale, or to have it confirmed on paying the full value. But this election must be made within a period to be designated in an interlocutory decree, determining the true value and the terms on which the payment is to be made.
AR'T. 1872.-If the purchaser elect to rescind the sale, he must restore the property with all the profits received, or which he might have received from the property from the time of bringing the suit; and the seller shall repay the purchase money, which he has received, with interest from the same time, give up and cancel the securities given for such part, if any, as remains unpaid; and moreover pay for such improvements made by the purchaser as add a permanent value to the property,