Table of Contents
§ 3 - OF THE IMPUTATION OF PAYMENTS
Art. 153. The debtor of several debts, has a right to declare, when he makes a payment, what debt he means to discharge.
Art. 154. The debtor of a debt which bears interest or produces arrearages, cannot, without the consent of the creditor, impute the payment which he makes on the capital, to the interest or arrearages in preference: a payment made on the capital and interest, but which is not integral, is first imputed to the interest.
Art. 155. When the debtor of several debts, has accepted a receipt, by which the creditor has imputed what he has received, to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.
Art. 156. When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging of those that are equally due, otherwise to the debt which has fallen due, though less burthensome than those which are not yet payable.
If the debts be of a like nature, the imputation is made to the most burthensome; if all things are equal, it is made proportionally.
§ 4 - OF TENDERS OF PAYMENTS, AND CONSIGNMENT
Art. 157. When the creditor refuses to receive his payment, the debtor may make him a real tender, and on the creditor's refusal to accept it, he may consign the thing or the sum tendered.
A real tender, followed by a consignment, exonerates the debtor; it has the same effect with regard to him as a payment, when it is validly made; and the thing thus consigned, remains at the risk of the creditor.
Art. 158. To make a real tender valid; it is necessary -
1st. That it be made to the creditor having the capacity to receive it;
2dly. That it be made by a person capable of paying;
3dly. That it be for the whole of the sum demandable, of the arrearages or interest due, for the liquidated costs, and for a sum towards the costs not liquidated, the deficit of which sum is hereafter to be made up;
4thly. That the term be expired, if it has been stipulated in favor of the creditor;
5thly. That the condition on which the debt has been contracted, be fulfilled;
6thly. That the tender be made in the place agreed upon for the payment, or that, if there be no special agreement, as to the place of payment, it be made either to the creditor himself, or at his dwelling, or at the house chosen for the execution of the agreement;
7thly. That the tender be made by the sheriff of the parish or district where it is to be made, conformably to what is hereafter prescribed.
Art. 159. If the real tender be refused, the debtor may be authorised by the judge, to consign, or deposit, what he has tendered, at the cost, peril and risk of the creditor.
This deposit thus authorised, shall be made in the hands of the sheriff who has made the tender, and shall include, besides the sum tendered, the interest to the day of the deposit.
The sheriff receiving the consignment, shall give his receipt for the same, to the person who makes it, specifying the nature and quantity of the species deposited, and the day on which the deposit was made.
Art. 160. Immediately after the consignment, the debtor must cite the creditor before the judge, that in his presence the tender may be declared good and valid.
And if the said tender be declared good and valid, all costs made or occasioned by the creditor posterior to the date of the tender, must fall upon himself, and the debtor is as fully discharged as if the payment had been made, but he is obliged to offer to transfer to the creditor the receipt of the deposit he has made.
Art. 161. The costs of the real tender and of the consignment, are also to be borne by the creditor, if the tender be judged valid.
Art. 162. As long as the consignment has not been accepted by the creditor nor the real tender declared valid by a definitive judgement, the debtor may take back the consignment, but if he does take it back, neither his co-debtors nor securities are exonerated.
Art. 163. When the debtor has himself obtained a definitive judgement declaring his real tender good and valid, he can no longer, even with the consent of the creditor, take back his consignment, to the prejudice of his co-debtors, or of his securities.
Art. 164. The creditor who has consented to the debtor's taking back his consignment, after it has been declared valid, by a definitive judgement, can no longer avail himself of the privileges and mortgages that were attached to the debt.
Art. 165. When the thing due is a certain substance that is to be delivered in the place where it is, the debtor must summon the creditor, to take it away, and if the creditor being summoned, does not take away the thing, and the debtor has need of the place which it occupies, the latter may obtain permission from a judge to deposit it in some other place, at the expence, peril and risk of the creditor.
§ 5 - OF THE SURRENDER OF PROPERTY
Art. 166. The surrender of property is the relinquishment that a debtor makes of all his property to his creditor, when he finds himself unable to pay his debts.
Art. 167. The surrender of property is voluntary or forced.
Art. 168. The voluntary surrender of property is that which is made at the desire of the creditor himself.
And the forced surrender is that which is ordered at the instance of the debtor's creditors, or of some of them, in cases provided for by law.
Art. 169. Both those kinds of surrender, are subject to formalities which are prescribed by special laws.
Art. 170. The voluntary surrender is a benefit which the law grants to the honest but unfortunate debtor, by which he is permitted to secure the liberty of his person by surrendering in a judicial manner, all his property to his creditors, any stipulation to the contrary notwithstanding.
Art. 171. The surrender does not give the property to the creditors, it only gives them the right of selling it for their benefit, and receiving the income of it till sold.
Art. 172. The creditors cannot refuse the surrender made according to the forms ordained by law, unless in case of fraud on the part of the debtor.
It operates the discharge of the restraint of the debtor's person and delivers him from actual imprisonment.
It also suspends all kinds of judicial process against the debtor.
Moreover it exonerates the debtor only to the amount of the value of the property surrendered; and in case that amount be insufficient for the discharge of his debts, he is still obliged to surrender whatever property he may afterwards become possessed of, until full payment, unless he has been discharged by the majority of his creditors, in number and in amount, at the time of the surrender.
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