LSU Law: Digest of 1808

TITLE VI – OF SALE

CHAPTER I – OF THE NATURE AND FORM OF CONTRACT OF SALE, AND OF THE MANNER IN WHICH IT IS TO BE PERFORMED

Art. 1. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
Three circumstances concur to the perfection of said contract, to wit: the thing sold, the price, and the consent.

Art. 2. All sales of immoveable property or slaves shall be made by authentic act or under private signature.
All verbal sale of any of these things shall be null as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.
The verbal sale of all moveable effects whatever be their value, is valid, but its testimonial proof must be made agreeably to what is directed in the title of contracts and conventional obligation in general.

Art. 3. The sale of any immoveable or slaves made under private signature shall have effect to the prejudice of persons not parties to it, only from the day said sale was registered in the office of a notary.
Nevertheless if that registering is duly made, to wit: within six days from the date of the act, for sales made in the parish of New-Orleans, and within ten days from said date for sales made in the other parishes of this territory, the sale so registered shall have effect against third persons and will bar them even from the date of the act under private signature: but this defect of registering shall not be pleaded between the parties who shall have contracted in said act, their heirs or assigns, who are as effectually bound by a sale made under private signature as if it were by an authentic act.

Art. 4. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although said object has not yet been delivered, nor the payment made,

Art. 5. The sale may be made purely and simply or under a condition either suspensive or resolutive. The object of said sale may also be to have two or several alternative things.
In all these cases its effects are regulated by the principles laid down in the title of contracts and conventional obligations in general.

Art. 6. When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect in as much as the things so sold are at the risk of the seller until they be weighed, counted or measured: but the buyer may require either the delivery of them or damages, if any be, for the same, in case of non execution of the contract.

Art. 7. If on the contrary the said goods, produce or other objects have been sold in a lump, the sale is perfect, though these said objects may not have been weighed, counted or measured.

Art. 8. Things of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold until the buyer be satisfied with the trial, which is a kind of suspensive condition of sale.

Art. 9. A promise to sell amounts to a sale when there exists a reciprocal consent of both parties, as to the thing and the price thereof; but to have its effect either between the contracting parties or with regard to other persons, the promise to sell must be vested with the same formalities as are above prescribed in articles 2 and 3 concerning sales, in all cases where the law directs that the sale be committed to writing.

Art. 10. But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from said promise, to wit: he who has given said earnest by forfeiting it, and he who has received it by returning the same.

Art. 11. The price of the sale must be certain, that is to say, fixed and determined by the parties: it ought to consist of a sum of money, otherwise it would be considered as an exchange.

Art. 12. The price however may be left to the arbitration of a third person, but if said third person cannot, or be unwilling to make said estimation, there exists no sale.

Art. 13. The expences of the act or other incidental costs of sale, are chargeable to the buyer unless some agreement be made to the contrary.

CHAPTER II – OF PERSONS CAPABLE OF BUYING AND SELLING, AND OF THINGS WHICH MAY BE SOLD

Art. 14. All persons may buy and sell except those interdicted by law.

Art. 15. A contract of sale between the husband and wife, can take place only in the three following cases:
1^st, When one of the spouses makes a transfer of property to the other who is judicially separated from him or her, in payment of his or her rights,
2^d, When the transfer made by the husband to his wife even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated;
3^d, When the wife makes a transfer of property to her husband in payment of a sum promised to him as a dowry; saving in these three last cases, to the heirs of the contracting parties their rights, if there exist any indirect advantage.

Art. 16. Any effects of commerce may be sold when there exists no particular laws to prohibit the traffic thereof.

Art. 17. Not only corporeal objects such as moveables and immoveables, slaves, live stock and produce may be sold, but also incorporeal things such as debt, an inheritance, a servitude or any other rights.

Art. 18. A sale is sometimes made of a thing to come, as of what shall accrue from an inheritance, of slaves or creatures yet unborn or such like other things although not yet existing.

Art. 19. It also happens sometimes that an uncertain hope is sold, as the fisher sells a haul of his net, before ever he throws it, and although he should catch nothing, the sale still exists; because it was the hope that was sold together with the right to have what might be catched.

Art. 20. The sale of a thing belonging to another person is null; it may give rise to damages when the buyer knew not that said thing belonged to another person.

Art. 21. The succession of a living person cannot be sold.

Art. 22. If at the moment of the sale, the thing sold is totally destroyed, the sale is null; if there is only a part of the thing destroyed, the purchaser has the choice either to abandon the sale or to retain the reserved part, by having the price thereof determined by appraisement.

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