All for One or Every Man for Himself? What Is Left of Solidarity in Redhibition

Author:Elizabeth A. Spurgeon
Position:Co-recipient of the Association Henri Capitant, Louisiana Chapter, Award for the best paper on a civil law or a comparative law topic with an emphasis in the civil law.

I. Introduction. II. Background On Redhibition And Solidarity. A. Roman and French Legal History of Redhibition. B. Redhibition and Solidarity in the Louisiana Civil Code. C. Louisiana Jurisprudence Concerning Solidarity in Redhibition. III. The Current State Of Jurisprudential Discord. A. Third Circuit: An Illustration of Intra-Circuit Incongruity. B. First Circuit: Continuation of Internal... (see full summary)


The author would like to thank Professor Ronald Scalise for his guidance, patience, and encouragement in supervising the writing of this Comment. The author would further like to thank Professors Andrea Carroll, Alain Levasseur, Ronald Scalise, and J.-R. Trahan for their inspiring devotion to the civil law and its students.

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I Introduction

Papinian is facing a dilemma. He and his wife have been working overtime as welders to save up enough money to buy a new travel camper. 1They have been admiring billboards advertising "Paul's Camper Trailers-The Best Deal in Town." Never one to turn down "the best deal in town," Papinian and his wife peruse the extensive selection of campers available at Paul's. Unfortunately, what the couple does not know, and what was not advertised on the billboard, is that Paul is an unscrupulous dealer who will sell and say literally anything to make a profit. Paul's desperation has grown as of late because his company is facing financial ruin. With their dreams of traveling all over the Gulf South in mind, and with cash in hand, Papinian and his wife purchase what appears to be the perfect camper trailer-a brand new model with the latest amenities. The camper is called the Modestinus 8000 Deluxe, and the couple is now its proud new owner.

Shortly after the purchase, Papinian and his wife embark on their first vacation in years, planning to venture all the way from Louisiana to Birmingham, Alabama, and back. Unfortunately, after traveling approximately 100 miles and before even reaching Alabama, the camper collapses in the middle of the interstate. 2Although no one is injured by the incident, both the camper and Papinian's hopes for a romantic getaway are destroyed. The couple feels strongly that they do not wish to be involved in litigation, as they were raised to despise anything related to lawyers and lawsuits. Papinian simply wants his money back. He researches online and discovers how to file a claim for "redhibition," a legal Page 1228 remedy in Louisiana law that involves return of the purchase price when a recently purchased item has a hidden defect rendering the item useless. 3 Papinian files the papers against Paul, and the redhibition claim is instituted. Due to the overcrowding of the docket in which the action is filed, however, Papinian and his wife receive no news on their claim for two years, at which time they learn that Paul's Camper Trailers, Inc., has filed for bankruptcy protection.

Out of options, the couple finally utilizes the services of an attorney who specializes in redhibition claims for defective campers, trailers, and trucks. Though the attorney is an expert among practitioners in this area of the law, his advice to Papinian is that the likelihood of success on the claim is uncertain, as is the legal landscape surrounding the case. 4 The next course of action will be to file suit against Modestinus, the manufacturer of the camper. But the time for filing the action against Modestinus may have run out, or prescribed, 5 depending on whether the court finds that Paul, as the seller, and Modestinus, as the manufacturer, are both bound "solidarily" 6 for the return of Papinian's money for the purchase of the defective camper. Based on recent court decisions, 7the lawyer informs the couple, there is a possibility that, even if the time to file the claim has not elapsed, the couple may have to prove which party-Paul, Modestinus, or both-caused the defect in the camper, as some courts require that a percentage of fault be allocated to each party, whether or not that party is able to pay or is even present in court. 8 On the other hand, some courts would allow the couple to file the claim and recover the purchase price of the camper fully from either Modestinus or Paul, forcing the two who Page 1229 profited to sort out the blame amongst themselves. 9 The law, Papinian's attorney reiterates, is simply not clear on this matter.

In its recent decision in Aucoin v. Southern Quality Homes, L.L.C., the Louisiana Supreme Court was given the opportunity to clarify this nebulous, albeit narrow, area of the law. 10 The purchaser of a mobile home brought an action in redhibition against both the seller and manufacturer, alleging solidary liability. 11 The court acknowledged in its opinion, as Papinian's lawyer informed him, that a split exists between the courts of appeal regarding the status of solidarity in redhibition claims. 12While both the trial court and appellate court in Aucoin found in favor of imposing solidary liability, the supreme court chose to find the manufacturer "independently" liable, completely avoiding the issue of whether solidarity is still recognized under Louisiana law. 13 Given the opportunity to offer clarity to an issue that the court acknowledged is unclear among some Louisiana courts, particularly after recent amendments to the Louisiana Civil Code, 14the supreme court, instead, injected further confusion. 15

This Comment purports to demonstrate that solidarity between sellers and manufacturers continues to exist under Louisiana law even after the comparative fault amendments to the Civil Code. Part II begins with an overview of the history and development of both redhibition and solidarity. Part III offers a presentation of the current state of jurisprudential discord, particularly after the 1996 Civil Code revisions. This Comment then seeks to analyze the problem in Part IV by offering insight on both the theoretical and pragmatic implications of the confusion over solidarity in redhibition, while also proposing two potential solutions. Part V offers a brief conclusion.

II Background On Redhibition And Solidarity

Redhibition involves the warranty imposed by law on a seller of a product against certain vices or defects. 16 The action originated to Page 1230 protect the public against corrupt sellers, 17 such as Paul. A defect gives rise to a claim in redhibition when it renders an item either useless or makes its use so inconvenient that the law presumes a buyer would not have purchased the item had he or she known of the defect. 18 Similarly, when a defect does not render a product useless but merely reduces its value, a claim in redhibition is also available. 19 Under the first form of redhibition, the remedy involves rescission of the sale and return of the purchase price; under the second form, the court imposes a reduction in the purchase price. 20

A Roman and French Legal History of Redhibition

A brief foray into the historical development of the law of redhibition is necessary to determine the purpose of implied warranty, both historically and presently, and to determine if and how solidarity fits into redhibition. 21 Redhibition traces its historical roots to early Roman law. 22 Originally, in classical Roman law, a contract of sale did not carry with it any warranty against defects or vices. 23 Beginning in the first and second centuries B.C., the Romans began to impose a warranty by which the curule aediles-the officer in charge of regulating markets and solving conflicts between consumers and sellers-forced sellers to stipulate or warrant that items sold were free from defects. 24 If Page 1231 these stipulations or warranties by the seller were proven untrue, the buyer had an action in redhibition to rescind the sale and receive a return of the purchase price. 25 This action had to be brought within six months of the sale. Good faith, or ignorance of the defect, on the part of the seller was not a viable defense. 26

The Emperor Justinian included such "Aedilician" rules in his Digests. 27 These rules, rooting redhibition in the overall Roman law requirement that good faith govern the conduct of parties to contractual obligations, 28 extended application of redhibition to the sale of movables and immovables in general. 29 The redhibition action was only available for defects unknown to the buyer; an apparent defect was not covered. 30 Additionally, the remedy for a claim in redhibition in Rome included both rescission of the sale and quanti minoris (reduction in price), depending on the defect. 31The purpose of an action in redhibition was to return the parties to the status quo. 32 Thus, a return of the purchase price in the form of rescission of the sale was the ideal remedy. 33 Both before the sale and after the claim for redhibition, the parties were theoretically in the same position-the buyer was not without her money nor enriched with a gratuitous item, while the seller, similarly, was not enhanced with unearned profits, nor deprived of his defective product.

As the Roman law of obligations made its way into the French Civil Code in 1804-largely due to the writings of Robert Joseph Pothier, who relied heavily on Justinian's Digests-with it came the law of redhibition, which developed a significant presence in French law. 34 The purpose of the doctrine under French law was Page 1232 to protect buyers and the general public against dangers inherent in all products. 35 In French law, the warranty against redhibitory vices is one of the two primary warranties inherent in every sale. 36The law of and liability for...

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