Glossae on the new law of marital donations

Author:J.-R. Trahan
Position:Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University.

I. Introduction . A. Prolegomenon. B. Corpus.


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I Introduction .Page 1060

Through Act 619 of 2004 (the Act),1 effective September 1, 2005, the Louisiana Legislature revised what is undoubtedly one of the most obscure and little-used parts of the Civil Code, namely, Chapters 8 and 9 of Title II of Book III. These chapters concern, in general terms, "marital donations",2 one subset of whichCdonations Page 1061 made to prospective spouses by other persons in "marriage contracts" -is addressed in Chapter 8 and another subset of whichCdonations made either between prospective spouses in "marriage contracts" or between spouses during their marriageCis addressed in Chapter 9. Although the Act was not the work of the Louisiana State Law Institute (LSLI)Cit was, instead, produced by a small group of law professors3, each of whom teaches the law of donations on a regular basis4C, its purpose was, nevertheless, similar to that of the "code revisions" that that law reform body has sponsored through the years. That purpose, then, was two-fold. First, the Revisers sought to bring the prior law of marital donations "up to date." That law first took shape in 1808, just under two centuries ago.5 Since that time a number of things have changed: (i) some of the concepts in terms of which that law was cast have been modified or replaced; (ii) some of the related substantive law, for example, the law of donations in general, has been revised; (iii) some of the procedures contemplated by that law have been revised or eliminated altogether; and (iv) some of the practices presupposed by that law have fallen into desuetude. The Act revises the law in the light of these developments. Second, the Revisers sought to correct various technical deficiencies in the prior law of marital donations. In the nearly 200 years since that law was set up, legal scholars and judges had pointed out that it suffered from several technical problems. These included (i) lacunae (gaps), (ii) antinomies (contradictions), and (iii) uncertainties of meaning. The Act revises the law so as to eliminate most of these technical problems.6 Page 1062

My aim in this article is merely to present, rather than to discuss in depth, the revised legislation. To this end, I shall follow a format that was pioneered some years ago by a (then) young Louisiana civil law scholar, Symeon Symeonides, for the "presentation" of revisions to the Civil Code, namely, that of (i) visually juxtaposing the texts of the new and old legislation and (ii) dropping footnotes to the text of the old legislation or that of the new legislation, as might be appropriate, to signal the important changes.7 I share Dean Symeonides' hope "that this format not only will prove convenient to the reader, but will also enable him to participate in the search for the latent changes in the new Act."8

A Prolegomenon

Within the French civil law tradition, from which much of1| Louisiana's private law, including its law of martial donations, was derived, donations of this kind have long been singled out for special regulation.9 To understand this special regulation, one must, first, in 1990 when the Legislature, as part of its "reform" of the law of divorce, repealed, but did not replace, article 156 of the Code of 1870:

In case of separation from bed and board, the party against whom it shall have been pronounced, shall lose all the advantages or donations, the other party may have conferred by the marriage contract or since, and the party at whose instance the separation has been obtained, shall preserve all those to which such part would have been entitled; and these dispositions are to take place even in case the advantages and donations were reciprocally made.

Though the Revisers would have liked to have "filled in" this lacuna, they ultimately decided not to try. Why? As the Revisers conceived of it and as they planned to "pitch" it to the Legislature, their revision project was to be "purely technical." Now, the question of how the divorce lacuna should be filled is more than just a "technical" question; it is, as well, a "political" question and a highly controversial one at that. For these reasons, then, the Revisers concluded that addressing the divorce lacuna lay beyond the scope of their revision project. Page 1063 have some appreciation for its "why" and its "how," that is, the purpose it is designed to attain and the ways in which it is supposed to attain that purpose.

The ultimate end of the law of "marital donations" is, in short, to promote marriage.10 This law accomplishes that result by Page 1064 encouraging donations inter vivos that, in one sense or another, "facilitate" marriage.11 By donations that "facilitate" marriage, I mean inter alia donations that (i) encourage the prospective spouses to enter into the marriage in the first place, (ii) encourage the married spouses to stay in the marriage, (iii) help the spouses to underwrite the cost of the marriage, or (iv) confirm the prospective spouses in their decision to marry or, to put it another way, provide tangible evidence to the spouses that the donor "blesses" the marriage. other during the marriage. Thus, the redactors adopted a number of favorable dispositions in regard to such donations."). Page 1065

The means whereby the legislation encourages such donations is, quite simply, to make them "easier to do" than other donations. This the legislation accomplishes by excepting these donations from at least some of the restrictive rules of the law of donations inter vivos in general, rules that, by conscious design, serve to make the act of donating relatively "painful." The restrictive rules in question, which are found in articles 1528B1531, are those that spell out the implications of the ancient French legal maxim donner et retenir ne vaut.12 In contrast to typical donations, marital donations are not subject to these rules.13 Thus, unlike the donor of a typical donation, who is limited to giving up some piece of property he presently owns,14 the donor of a marital donation can, instead, give up all or Page 1066part or some of the property that he may still happen to have at his death. Unlike the donor of a typical donation, who must give his thing away free of any even partly potestative conditions,15 the donor Page 1067 of a marital donation can give it subject to such a condition, thereby leaving open to him the possibility that he might be able, by causing the condition to fail or to be fulfilled, as the case might be, to get the thing back. Unlike the donor of a typical donation, who cannot require that the donee, in consideration for the gift, undertake to pay off more than the debts the donor then owes,16 the donor of a marital donation can require that the donee, in consideration for the gift, undertake to pay off even debts the donor will incur later on. Last and far and away most important, unlike the donor of a typical donation, who must give his thing away finally and irrevocably,17 the the Code has intended to authorize donations made on condition the realization of which depends on the will of a third person as well as on the donor's will (mixed condition).").

For a general exposition of the distinctions among "purely" potestative, "simply" potestative, "mixed", and "casual" conditions, see Saúl Litvinoff, The Law of Obligations '' 5.6-5.7, at 86B93, in 5 Louisiana Civil Law Treatise (1992); Alain Levasseur, Louisiana Law of Obligations in General: A Précis 54B59 (3d ed. 1996). Page 1068 donor of a marital donation can "give" it while at the same time reserving to himself (subject to certain restrictions) the right to dispose of it otherwise. In short, excepting marital donations from these rules enables the donor, at one and the same time, to give (donner) and, at least in some sense and to some degree, to retain (retenir), something that is, of course, less "painful" than to give (donner) but not to retain (retenir).

B Corpus






New Page 1069




None Page 1076

New 22

Section 1. In General



Art. 1734. Donations inter vivos by marriage contract; effect as to unborn children

Every donation inter vivos,23 though made by marriage Page 1077 contract to the husband and wife or to either of them, is subject to the general rules prescribed for the donations made under that title.

. . .

Art. 1742. Reduction of donations to disposable portion

All donations made to a married couple by their marriage contract, are, at the time of the opening of the succession of the donor, reducible to the portion that the law permitted him to dispose of.

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Art. 1734. Donations in contemplation of marriage24 by third persons; in general Page 1079

Any third person25 may make a donation inter vivos in contemplation of a prospective marriage in accordance with the provisions of this Chapter.26 Such a donation shall be Page 1080 governed by the rules applicable to donations inter vivos in general,27 including the rules pertaining to the reduction of Page 1081 donations that exceed the disposable portion,28 but only insofar as those general rules are not modified by the following Articles.29 Page 1083

A donation inter vivos by a third person in contemplation of a prospective marriage that is not made in accordance with the provisions of this Chapter shall be governed solely by the 30 rules applicable to donations inter vivos in general.


Art. 1734. Donations inter vivos by marriage contract; effect as to unborn children Page 1084

Every donation inter vivos . . . made by marriage contract to the husband and wife or to either of them . . . .

Art. 1739. Presumed...

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