Ronald Scalise, ‘Classifying and Clarifying Contracts’

This Article attempts to properly classify, consistently define, and accurately explain the Louisiana Civil Code’s approach to classifying contracts. The Civil Code articles on classification of contracts in Louisiana are generally known but little understood. Although many lawyers can recite the definitional difference between bilateral and onerous contracts, few could explain how the two differ and what difference, if any, their distinction makes in practice. Add to the confusion the concept of commutative contracts, whose definition appears to have changed over time, and even the most erudite lawyers, scholars, and judges are left to speculate as to what the drafters intended.

To compound this challenge, the revision process of the Louisiana Civil Code, although salutary in many ways, has at times magnified the confusion. The Louisiana Civil Code has been undergoing a comprehensive revision since 1976. The process for doing so has been caustically but accurately described as ‘piecemeal’, often with the right hand not knowing what the left is doing. One subject matter committee is charged to revise the law of ‘contracts’ and another to rewrite the law of ‘sales’ and yet another to rewrite the law of ‘deposit’. Indeed, in recent times, the granularity and specialization of committees has approached an almost microscopic level, with some committees designed to cover a single civil code article or a single concept. Although membership on committees is often overlapping, consistency in approach and concepts, if it exists, is not uniform. This has, regrettably, led the Louisiana Civil Code to adopt rules in one section that do not always coordinate with the rules and principles in other sections. Thus, one area of the Civil Code may be revised, and a classificatory term may be discarded or changed without a full appreciation of its connection to or impact on other areas of the Civil Code …

Scalise, Ronald J, Classifying and Clarifying Contracts (2016). 76 Louisiana Law Review 1063 (2016), Tulane Public Law Research Paper No 16-17.

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