Ruminations on the Louisiana Law of Pledge

Author:Michael H. Rubin
Position:Mr. Rubin is a member of the multi-state firm of McGlinchey Stafford. He has served as an Adjunct Professor at the Paul M. Hebert Law Center for more than three decades and is a past president of the American College of Real Estate Lawyers, the Bar Association of the United States Fifth Circuit Court of Appeals, and the Louisiana Bar ...
Pages:697-739
 
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Ruminations on the Louisiana Law of Pledge
Michael H. Rubin*
On January 1, 2015, Act 281 of the 2014 Louisiana legislative
session took effect.1 Drafted by the Louisiana State Law Institute,2
the Act amends, revises, and reworks not only the Civil Code
articles concerning the rules on pledge as a form of real security, but
also the articles setting forth the basic principles of personal liability
and security for loans. It also deals, in part, with judicial mortgages.
Practitioners will find that, although many basic pledge concepts
remain the same, there are a number of new rules, new procedures,
and, in some cases, new prohibitions.
Copyright 2015, by MICHAEL H. RUB IN.
* Mr. Rubin is a member of the multi-state firm of McGlinchey Sta fford.
He has served as an Adjunct Professor at the Paul M. Hebert Law Center for
more than three decades and is a past president of the American College of Real
Estate Lawyers, the Bar Association of the United States Fifth Circuit Court of
Appeals, and the Louisiana Bar Association. He is a Life Member of the
American Law Institute, a Commissioner on the Uniform Law Commission, and
was a member of the Louisiana State Law Institute Committee that proposed the
2014 revision to the pledge articles. His latest legal book is LOUISIANA
SECURITY DEVICES: A PRÉCIS (LexisNexis). His debut novel, published in the
Fall of 2014, is the legal thriller, THE COTTONCREST CURSE, published by the
LSU Press.
The author extends his thanks to L. David Cromwell, Christopher Odinet,
Dian Tooley-Knoblett, and Gabriel A. Cro wson for their many helpful
comments and suggestions about this Article and the examp les contained in it.
Their advice is sincerely appreciated, and any errors that remain are purely those
of the author.
1. Act No. 281, 2014 La. Acts. The Louisiana Law Review deviates from
The Bluebook for Louisiana source material when citing to session laws in the
Acts of the Louisiana Legislature. In addition to providing the year and page
number for the particular session law, the Louisiana Law Review also provides
the Act number. The Acts of the Louisiana Legislature can be found on
HeinOnline (under “Session Laws Library”) or in the Paul M. Hebert Law
Center Library.
2. The Louisiana State Law Institute was created by the Legislature in
1938 and serves as “an official advisory law revision commission, law reform
agency and legal research agency.” LA. REV. STAT. ANN. § 24:201 (2007). Note,
references to Louisiana Revised Statutes contained within are to the West
Louisiana Revised Statutes Annotated. The date appended to each statutory
reference is the publication date of each section. See also Act No. 166, 1938 La.
Acts 430. The Law Institute works not only on the “continuous revision,
clarification and co-ordination of the Louisiana Revised Statutes,” but also on
revisions to the Louisiana Civil Code. See LA. REV. STAT. ANN. § 24:251
(2007).
698 LOUISIANA LAW REVIEW [Vol. 75
I. THE BACKGROUND OF THE LOUISIANA LAW OF PLEDGE
There are numerous historical antecedents for the Louisiana
law of pledge, including an Egyptian tradition of pledging a
mummy to secure a loan,3 Greek4 and Roman5 law, and the Bible.6
Although there is an ongoing scholarly debate about whether
Louisiana owes more of its civilian tradition7 to France or Spain,8
there is no dispute that, at the time the entire Civil Code was
revised in 1870 following the Civil War,9 only 19 of its more than
3. See Valerie Seals Meiners, Comment, Formal Requirements Of Pledge
Under Louisiana Civil Code Article 3158 and Related Articles, 48 LA. L. REV.
129, 129 (1987).
4. See John H. Wigmore, The Pledge-Idea: A Study in Comparative Legal
Ideas, 10 HARV. L. REV. 321, 322–23 (1897). This article notes that
[I]n at least four important bodies of law and language the primitive
word for the ideas of “pledge,” “bet” (or “forfeit”), and “promise,” was
substantially the same. In the Scandi navian we have vaed, ved. In the
Germanic we have wetti, wette, wedde, vadi-um, guadi-um, and (by
sliding the di into ji) wage, guage, gage. In the Latin we have pignus in
the first two meanings, and from the same root () pango, pag,
pactum, in the third meaning. I n the Greek, the verb-stem ø (put) has
all three meanings.
Id. (citations omitted). See also John H. Wigmore, The Pledge-Idea: A Study in
Comparative Legal Ideas. III, 11 HARV. L. REV. 18 (1897).
5. See Donald E. Phillipson, Development of the Roman Law of Debt
Security, 20 STAN. L. REV. 1230, 1237 (1968) (“Although pignus had apparently
arisen before the fifth century B.C., it was not included in the Twelve Tables.
Pignus was a form of security far less formal and restrictive than fiducia cum
creditore, because it did not involve a transfer of civil ownership.”); Cf. Shael
Herman, The Contribution of Roman Law to the Jurisprudence of Antebellum
Louisiana, 56 LA. L. REV. 257 (1995).
6. See, e.g., Genesis 38:18 (The Soncino Chumash) (“And he said, ‘What
pledge shall I give thee?’ And she said, ‘Thy signet, and thy bracelets, and thy
staff that is in thy hand.”); Deuteronomy 24:6 (The Soncino Chumash) (“No
man shall take the mill or the upper millstone to pledge, for he taketh a man’s
life to pledge.”).
7. For a discussion of Louisiana’s civilian tradition, see Alvin B. Rubin,
Hazards of a Civilian Venturer in a Federal Court: Travel and Travail on the
Erie Railroad, 48 LA. L. REV. 1369 (1988).
8. See Vernon V. P almer, The French Connection and the Spanish
Perception: Historical Debates and Contemporary Evaluation of French
Influence on Louisiana Civil Law, 63 LA. L. REV. 1067 (2003); see also Alain
Levasseur & Vicenç Feliú, The English Fox in the Louisiana Civil Law
Chausse-Trappe: Civil Law Concepts in the English Language; Comparativists
Beware!, 69 LA. L. REV. 715 (2009).
9. For an overview of the r evisions to the Civil Code, see A.N.
Yiannopoulos, The Civil Codes of Louisiana, in LA. CIVIL CODE, at XLI (Vol. 1
2014). For a more detailed discussion of this issue, see A.N. Yiannopoulos, Two
Critical Years in the Life of the Louisiana Civil Code: 1870 and 1913, 53 LA. L.
REV. 5 (1992) [Yiannopoulos, Two Critical Years].
2015] RUMINATIONS ON PLEDGE 699
40 articles on pledge were either direct translations of provisions of
the Code Napoléon or dealt with the same subject matter.10
Nonetheless, because the previous Louisiana Civil Code of 1825
was written in both French and English (with French being the
original language and English being the translation),11 and because
French law at the time influenced the redactors of the 1825 Civil
Code,12 many Louisiana courts have looked to the works of French
commentators to aid in understanding the pledge provisions.13
Once the 1870 Civil Code articles on pledge were enacted, they
remained almost completely unchanged until the 2014 legislative
session.14
10. See LA. STATE LAW INST., 3 LOU ISIANA LEGAL ARCHIVES: COMPILED
EDITIONS OF THE CIV IL CODES OF LOUISIAN A, pt. 2 (1942) (containing a word-
for-word comparison of the 1804 Code Napoleon, and the Louisiana Civil Codes
of 1808, 1825, and 1870). The following 1870 Civil Code articles are the subject
of Act 281 and are traceable directly back to the Code Napoleon: 3133–3135,
3141, 3157, 3160, 3162, 3164–3167, 3169, 3171, and 3176–3181.
11. Id.
12. See Yiannopoulos, The Civil Codes of Louisiana, supra note 9, at
XLVII, XLIX (“The redactors of the 1825 Code followed the French Civil Code
closely and relied heavily on French doctrine and jurisprudence. . . . The 1808
and 1825 Louisiana Civil Codes were drawn up in French and translated into
English. . . . [C]ourts taking cogniza nce of the fact that the French text was the
original version, and being aware of the poor quality of the [English] translation,
developed the view that the French text was controlling.”); see also
Yiannopoulos, Two Critical Years, supra note 9, at 22.
13. See, e.g., Scott v. Corkern, 91 So. 2d 569, 573 n.4 (La. 1956) (“The
reason for this rule is founded on the writings of the French commentators,
particularly Marcade, Troplong and Duranton who voice the opinion that it is
not the contract of pledge that interrupts prescription but the continuous
possession of the thing pledged with the debtor’s consent to such possession that
serves as a constant acknowledgment of the debt.” (citation omitted)); see also
Casey v. Cavaroc, 96 U.S. 467, 484 (1877); Citizens’ Bank v. Janin, 15 So. 471,
473 (La. 1894) (citing Troplong and Dalloz).
14. Of the 48 articles on pledge contained in the 1870 Civil Code (articles
3133–3181), 42 remained unchanged until the 2014 legislation. Two of the 1870
articles were repealed (articles 3160 and 3161). Four other articles were
amended between 1870 and 2014. The first is article 3133.1, amended by Act
No. 137, § 16, 1989 La. Acts 527, effective September 1, 1989, and Act No.
1079, §7, 1990 La. Acts 2735, effective September 1, 1990, to deal with
Louisiana’s adoption of Louisiana Revised Statutes section 10:9-101,
Louisiana’s version of UCC article 9. The second is article 3158, amended by
Act No. 157, § 1, 1900 La. Acts 239, Act No. 290, § 1, 1952 La. Acts 489, and
Act No. 137, § 17, 1989 La. Acts 527, which had the effect of reworking the
statute concerning the requirements of the pledge of movables and the effects of
pledge on third parties. Third, article 3159, amended by Act No. 157, §2, 1900
La. Acts 239 dealt with pledges in favor of banks and last, article 3165,
amended by Act No. 9, 1872 La. Acts 36, concerning the rights of a pledgee
upon the debtor’s default. See Ralph Slovenko, Of Pledge, 33 TUL. L. REV. 59

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