Buried by the Sands of Time: The Problem with Peremption

• Author: Sally Brown Richardson
• Position: Judicial Clerk to the Honorable W. Eugene Davis, United States Court of Appeals for the Fifth Circuit
• Pages: 1179-1225

Judicial Clerk to the Honorable W. Eugene Davis, United States Court of Appeals for the Fifth Circuit. J.D./D.C.L., Louisiana State University; B.A., Georgetown University. The author thanks Andrea B. Carroll, Melissa T. Lonegrass, and Ronald J. Scalise, Jr., for their comments on earlier drafts. All views and any errors herein are solely attributable to the author.

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Introduction

Society is obsessed with time. We count down the number of shopping days until Christmas. ¹ Days are measured in billable hours. ² We invest based on the time value of money. ³ Children are punished by time outs. ⁴ People struggle with time management, ⁵worrying that if they waste time, time will doth waste them. ⁶ We want time to stand still when we are having the time of our lives because we know that as time goes by, the times will be achangin'. ⁷ We believe there is a time for everything. ⁸ In sum, we are buried by the sands of time.

But as cognizant as we are of time in our day-to-day lives, we remain ignorant of how time affects our legal rights, especially our right to file suit. ⁹ Legal time mismanagement is particularly prevalent in Louisiana in part because of the doctrine of peremption. Peremption, as defined in the Louisiana Civil Code, is "a period of time fixed by law for the existence of a right." ¹⁰ In other words, it is a mode of destroying rights due to their nonuse.

Though seemingly simple in definition, peremption creates vast jurisprudential problems. First, peremption causes inequities in the law. ¹¹ Because peremption abolishes a right after a fixed, absolute time period, a claimant's cause of action may be extinguished before the claimant even knows he can bring the cause of action. The loss of rights under such circumstances effectively denies the claimant his opportunity to file suit. This ostensibly unfair result leads to the second problem of peremption, the misapplication of Page 1181 the doctrine. ¹² Some courts (and occasionally the legislature) are unwilling to promulgate the aforementioned inequities of peremption; instead, they attempt to provide equitable remedies to claimants. ¹³ To do so, however, courts and the legislature apply- or, more accurately, misapply-rules inapposite to the underlying principles of peremption to peremptive periods. ¹⁴ Such misapplications further the third problem of the doctrine: confusion between peremption and other temporal doctrines. ¹⁵ Classifying whether a time period is peremptive has been an arduous task since the creation of the institution. ¹⁶ This difficulty lies largely in the doctrine's facial similarity to prescription, another institution that terminates litigation due to the passage of time. ¹⁷ The nonperemptive rules misapplied to peremptive periods are frequently rules of prescription. ¹⁸ As prescriptive rules are applied to peremptive periods, the differences between the two doctrines become blurred, thus making distinguishing peremption from prescription more onerous and, in turn, increasing the confusion of courts as to how to characterize particular time limitations.

Because of these issues, this Article argues that the laws pertaining to peremption are in need of vast legislative overhaul. Part I details the history and definition of peremption. Part II delineates the current problems with peremption, describing the inequities it creates, the misapplications of the doctrine, and the confusion courts face when determining whether a time limitation is peremptive. Part III suggests four alternative legislative solutions for peremption, explains how each solution alleviates the current problems, and discusses the solutions' advantages and disadvantages. This Article concludes by advocating for a particular legislative remedy.

I An Overview Of Peremption

The history, definition, and effects of peremption shed light on many of the institution's current problems. Given the close relation Page 1182 of peremption to prescription, however, these matters must be understood not only within the confines of peremption, but also as they compare to and contrast with prescription.

A History of Peremption

The origins of peremption are rooted in the doctrine of liberative prescription. ¹⁹ Prescription was originally introduced in Roman law by the praetor ²⁰ as an equitable means of temporally Page 1183 limiting newly created actions. ²¹ Through prescription, the praetor was able to protect debtors against unreasonably delayed claims while still providing creditors a reasonable time to file suit. ²² This equitable remedy was first codified in the Theodesian Code as a defense to be invoked by the debtor against stale personal claims. ²³Emperor Justinian maintained the concept of prescription in the Corpus Juris Civilis, ²⁴ and it was similarly incorporated in the Code Napoleon of 1804, ²⁵ the Louisiana Digest of 1808, ²⁶ and the Louisiana Civil Code of 1825. ²⁷

While equity for the debtor was the underlying motive for the creation of prescription, ²⁸ safeguards for the creditor-such as interruption and suspension of the prescriptive period-were ingrained in the institution from its beginning. ²⁹ These protections stopped the running of prescription when the creditor took particular actions or was unable to act. ³⁰ Devices like interruption and suspension highlighted the equitable underpinnings of the Page 1184 institution because they served as a defense for creditors within a system generally designed to protect debtors.

The desire to protect the debtor, however, sometimes outweighed the courts' interest in allowing the creditor to raise equitable defenses. ³¹ In these instances, French courts classified the statutorily provided time period not as one of prescription, but as a forfeiture. ³² Forfeitures "were withdrawn from the reach of the rules which govern[ed] prescription," meaning that the equitable defenses prescription provided to creditors-such as interruption and suspension-were judicially barred. ³³ The expiration of the time period operated as a "foreclosure" on the creditor's right against the debtor. ³⁴ If the creditor did not file his claim timely, his right to sue was forfeited, regardless of the reason for his tardiness. ³⁵

Following its French counterparts, Louisiana courts also invoked the notion of forfeiture-referred to as peremption by Louisiana courts ³⁶-when the need to protect the debtor exceeded the interest in safeguarding the creditor's right to sue. Louisiana courts first utilized the doctrine of peremption with regard to mortgages in the mid-1800s. In the Civil Code of 1825, a mortgage could be re-inscribed by a mortgagee to preserve its effect against Page 1185 third parties. ³⁷ A ten-year limitation applied to the re-inscription such that, upon its re-inscription, a mortgage was preserved for ten years; if the mortgage was not renewed within the given time frame, the effect of the mortgage ceased. ³⁸ In Shepherd v. Orleans Cotton Press Co., the claimants filed to re-inscribe their mortgage within the applicable time period, but the filing was in improper form. ³⁹ The claimants argued that despite the improper form, the filing of the re-inscription should interrupt the running of the time limitation under the general rules of interruption of prescription. ⁴⁰

The Shepherd court disagreed with the claimants' argument and found that the time period for the re-inscription of mortgages was a peremptive period; thus, it was not subject to the interruptive rules of prescription. ⁴¹ The Shepherd court viewed the right to re- inscribe a mortgage as solely within the discretion of the creditor and therefore determined that the statutorily provided time limitation was intended to protect only the debtor. ⁴² As the court stated, "The inscription is exclusively in the power of the party having an interest to make it. If he does not reinscribe, he cannot complain of losses sustained through his own neglect." ⁴³ Based on this theory, the court held that "legal delays are fatal in all cases, unless expressly declared to be otherwise." ⁴⁴ Numerous courts subsequently adopted this view, and the time period applicable to the re-inscription of mortgages became referred to as the "peremption of mortgages." ⁴⁵

At the turn of the century, the Louisiana Supreme Court began applying peremption to more rights. In the landmark case Guillory v. Avoyelles Railroad Co., the court held that an action to void an election was subject to a peremptive period of three months. ⁴⁶ The claimants in Guillory sought to nullify a tax election because of incorrect procedures used in ordering the election. ⁴⁷ The election Page 1186 occurred on July 26, 1894, but the claimants did not file suit until April 29, 1899. ⁴⁸ The claimants argued that during the nearly five- year span between the election and their filing, other lawsuits regarding the election had been filed thereby interrupting what they asserted was a prescriptive period. ⁴⁹ The claimants contended that they had three months from the date that the last lawsuit finished-February 6, 1899-to bring an action, i.e., they had until May 6, 1899, to file suit. ⁵⁰

The Guillory court did not accept the claimants' argument, stating that the statute providing the right to contest an election created a peremptive, not prescriptive, period. ⁵¹ Whereas the court in Shepherd determined that the statute was peremptive based on who it was intended to protect, the Guillory court focused on the language of the statute to reach its conclusion. The Guillory court distinguished between...