Vendor's Privilege: Adheret Visceribus Rei

Author:L. David Cromwell
Position:Member, Louisiana Bar, and Vice President and Member of the Council of the Louisiana State Law Institute, as well as Reporter of its Security Devices Committee. J.D., 1983, Tulane University of Louisiana.
Pages:1165-1250
 
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Vendor’s Privilege: Adheret Visceribus Rei
L. David Cromwell
As the price for an immovable, a purchaser assumed payment
of the seller’s debt that was secured by an existing mortgage that
the seller had granted a year earlier. More than ten years after
recordation of the mortgage, but less than ten years after the act of
sale was recorded in the mortgage records, a judgment creditor of the
purchaser seized the immovable, arguing that the mortgage had lost
its effectiveness for failure of timely reinscription. Unfortunately for
the judgment creditor, however, she had overlooked a powerful
security device that resulted by operation of law from the purchaser’s
assumption of the mortgage debt: the vendor’s privilege. Affirming a
ruling that the immovable remained subject to this vendor’s privilege,
the Louisiana Supreme Court held it to be wholly immaterial whether
the mortgage was reinscribed in a timely manner or whether the
mortgage was recorded at all, for the failure of timely reinscription of
the mortgage did not affect the vendor’s privilege that arose from the
assumption in the act of sale “as a legal concomitant . . . without the
requirement of any stipulation at all.”1 As authority for this
proposition, the Court cited, without translation, an obscure Latin
maxim: Adheret visceribus rei.
The Court’s use of this Latin expression certainly suggests that the
security device known as the vendor’s privilege, like many other
creatures of the civil law, originated in Roman law. Indeed, support for
that proposition can be inferred from Baker v. Frellsen,2 in which the
Louisiana Supreme Court a year earlier invoked the same Latin
phrase, in the process providing both a translation and an apparent
indication that the vendor’s privilege finds its source in Roman
law:
[The vendor’s privilege] is a guarantee which attaches so
tenaciously to the nature of the contract of sale on term,
Copyright 2015, by L. DAVID CROMWELL.
Member, Louisiana Bar, and Vice President and Member of the Council
of the Louisiana State Law Institute, as well as Reporter of its Security Devices
Committee. J.D., 1983, Tulane University of Louisiana. This Article is derived
from, and expands upon, a paper presented by the author to the Society of Bartolus
in New Orleans, Louisiana, o n October 12, 2012. The author expresses
appreciation to Professors A.N. Yiannopoulos and Dian Tooley-Knoblett, both of
whom were in attendance when the paper was presented, for their thoughtful
comments and suggestions, and to Claire Popovich for her able research
assistance.
1. Conté v. Cain, 33 La. Ann. 965, 968 (1881).
2. 32 La. Ann. 822 (1880).
1166 LOUISIANA LAW REVIEW [Vol. 75
that the Roman law says that it adheres to the very entrails
of the thing, adheret visceribus rei.3
Objection might be made to this statement on the ground that
it, unfortunately, is without basis in historical fact and appears to
have arisen from a mistaken belief that Latin words necessarily
imply roots in Roman law. Indeed, the Supreme Court recanted
just two years later in De L’Isle v. Succession of Moss,4 explaining,
in a footnote, that the use of the word “Roman” in the Baker case
was in error; instead of Roman law, the reference was intended to
be “modern civil” law. The Court acknowledged that the vendor’s
privilege was unknown to Roman law but rather is of Gallic
creation.
Whatever its origin, the vendor’s privilege has been a coveted
and powerful form of security throughout Louisiana’s history. This
Article begins with a short excursus recalling some central notions
about the definition and nature of privileges and posits that there
actually exist two different vendor’s privileges: the vendor’s
privilege on movables and that bearing on immovables. After
tracing the origin of both of these vendor’s privileges, this Article
explores the policies underlying the privileges, requirements of
registry, status of the privileges as real rights, events causing a loss
of the privileges, and problems involving ranking. By focusing on
the vendor’s privilege as an example, this Article seeks to
illustrate, from a broader perspective, the reasons for the existence
of privileges, the manner in which they relate to each other and to
other forms of security, and the extent to which privileges can
remain relevant in a modern civil law system.
I. GENERAL NOTIONS OF PRIVILEGE
Article 3186 of the Louisiana Civil Code, which was borrowed
verbatim from the Code Napoléon,5 provides that “[p]rivilege is a
right, which the nature of a debt gives to a creditor, and which
entitles him to be preferred before other creditors, even those who
have mortgages.”6 A privilege is thus a preference established by
legislation and is an exception to the general rule of the Civil Code
that the proceeds of the sale of an obligor’s property are distributed
ratably among his creditors.7 A privilege is a form of real security.8
3. Id. at 828.
4. 34 La. Ann. 164, 166 (1882).
5. See CODE CIVIL [C. CIV.] art. 2095 (Fr.) (1804).
6. See LA. CIV. CODE art. 3186 (2015).
7. LA. CIV. CODE art. 3134 (2015). As comment (a) to that article explains,
this rule continues the familiar principle of article 3183 of the Louisiana Civil
2015] VENDOR’S PRIVILEGE 1167
Privileges cannot be granted contractually; they can arise only by
operation of law based upon the nature of the debt.9
Planiol defines a privilège as “a disposition of the law which
favors a creditor.”10 This definition not only underscores the rule
that privileges arise only by operation of law but is true to the
term’s Latin etymology—law made for private or particular
interests: privilegium, from privus - legis.11
Some privileges are general and operate on all property of the
debtor, such as those securing funeral charges, law charges, and
expenses of the last illness.12 Other privileges are special; that is,
they operate only on specific property. One of the most important
special privileges is that in favor of the vendor as security for the
unpaid purchase price. The law itself grants the unpaid vendor this
privilege; it is unnecessary for the vendor to obtain a mortgage, or
even to obtain written recognition of the existence of the vendor’s
privilege, for it to arise.13
The definition of “privilege” contained in article 3186 has been
criticized on the ground that it envisions merely rights of
preference that exist upon property while in the debtor’s patrimony
and that the general privileges comprise the only category of
Code of 1870 that “the property of the debtor is the ‘common pledge of his
creditors.’” Id. cmt. a. The reference in the source article to the concept of
“pledge” was deleted, because the term was used in that article in a “non-
technical sense.” Id.
8. LA. CIV. CODE art. 3137 cmt. c (2015). The fact that a privilege is a
form of real security does not necessarily mean that it is a real right. Id.
9. See LA. CIV. CODE art. 3185 (2015); see, e.g., Southport Petroleum Co.
of Del. v. Fithian, 13 So. 2d 382, 383 (La. 1943); In re Liquidation of Hibernia
Bank & Trust Co., 162 So. 644, 645 (La. 1935); State v. Miller, 126 So. 422,
428 (La. 1930); Succession of Rousseau, 23 La. Ann. 1, 3 (1871).
10. 2 MARCEL PLANIOL & GEORGES RIPERT, TREATISE ON THE CIV IL LAW,
pt. 2, No. 2544 (La. State Law Inst. trans., 11th ed. 1959) (1939).
11. LE PETIT LAROUSSE ILLUSTRE 822 (Larousse 2010).
12. LA. CIV. CODE arts. 3191, 3252 (2015). The need for explanation of the
reasons for the existence of privileges has often afforded courts the opportunity
to demonstrate their prowess in the use of poetic and figurative language, as
evidenced by an early case providing this moving explanation for the privilege
for funeral charges:
[W]ere it not for the privilege which the law allows to those who dig
the grave, furnish the coffin and drive the hearse, many a lifeless frame,
deprived of sepulture, would rot in unnoted or forsaken homes. Were it
not for that privilege, when Death enters a city and knocks at every
door-watchful and indefatigable as it is, Charity would inevitably be
unequal to the increased task which-otherwise-would be imposed upon
it.
Alter v. O’Brien, 31 La. Ann. 452, 454 (1879).
13. Conté v. Cain, 33 La. Ann. 965, 968 (1881).

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