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TITLE XVIII - OF RESPITE
Art. 3084. A respite is an act by which a debtor, who is unable to satisfy his debts at the moment, transacts with his creditors and obtains from them time or delay for the payment of the sums which he owes to them.
Art. 3085. The respite is either voluntary or forced.
It is voluntary when all the creditors consent to the proposal, which the debtor makes, to pay in a limited time the whole or a part of his debt.
It is forced when a part of the creditors refuse to accept the debtor's proposal, and when the latter is obliged to compel them by judicial authority to consent to what the others have determined in the cases directed by law.
Art. 3086. The forced respite takes place when the creditors do not agree, for then the opinion of the majority in number and in amount prevails over that of the other creditors, and the judge shall approve such opinion, and it shall be binding on the other creditors who did not agree to it.
Art. 3087. But in order that a respite may produce that effect, it is necessary:
1. That the debtor should deposit in the office of the clerk of the court of his domicile, to whom he presents his petition for calling his creditors, a true and exact schedule, sworn to by him, of all his movable and immovable property as well as his debts.
2. That a meeting of the creditors of such debtor, domiciliated in the State, shall be called on a certain day at the office of a notary public, by order of the judge, at which meeting the creditors shall be summoned to attend by process issued from the court, if the creditors live within the parish where the meeting shall take place, or by letters addressed to them by the notary, if they are not residing in the parish.
3. That the creditors be ordered to attend in ten days, if they are all living in the parish of the judge who gives the order, and in thirty days, if there are some of them residing out of the parish.
4. That this meeting, as well as its object, be advertised by papers posted up in the usual places, and also by three publications in a newspaper, if any be printed within the extent of the jurisdiction of the judge who grants the order.
5. That the creditors explain exactly the amount of the sums which they claim, and make oath before the notary holding the meeting, that they are justly and lawfully due.
The creditors who do not make this oath shall not have the right of voting, and their credits shall not be counted among those by which it is to be determined whether the respite is granted or not.
Art. 3088. Absent creditors, who are not domiciliated in the State, are not, in any case, summoned to the meeting. They are to be represented by an attorney, whom it is the duty of the judge to appoint for them.
The duties of that attorney are confined to establishing, as far as possible, the debts of the absentees, and to seeing that the proceedings are conducted legally; he can not grant any thing in the name of the persons whom he represents.
Art. 3089. It is not necessary that the creditors should all be together at the deliberation; as they arrive at the place of meeting each may take the oath and express his will.
Art. 3090. When it has not been possible to receive the declarations of all the creditors in a single day, the notary may adjourn the meeting to the day following; and if those two days are not sufficient, he may adjourn it to the next; but the meeting must always be closed the tenth day, at the latest.
Art. 3091. In order that the contract of respite may be effectual, it must be homologated by the judge who ordered the meeting of the creditors.
Art. 3092. Every opposition to the homologation must be made in writing within ten days, dating from that on which the proces verbal of the deliberation of the creditors was returned to the clerk's office.
The reasons on which the opposition is founded must be expressed.
Art. 3093. The property of the debtor is not hypothecated by reason of the respite, for the payment of the mass of the debts, unless the respite had been granted on the express condition that this hypothecation shall exist. But any creditor who has not assented to the respite may require that the debtor shall furnish security that the property of which he is left in possession shall not be alienated, or in case it is, that the money arising from the sale, or mortgage, of the same shall be employed in paying, ratably, the debts existing at the time of the respite; and if any debtor having obtained a respite shall fail or neglect to furnish, when required by order of court, the security herein before provided for, within ten days from the date of such order, or shall fail or neglect to make payment to his respective creditors, according to the terms of the said respite, any creditor thereby interested may proceed summarily against such debtor by rule, taken in the respite proceedings, to show cause why the judgment decreeing such respite should not be vacated and annulled, and why the debtor should not forthwith make a cession of his property to his creditors. And the court in making such rule absolute shall appoint a provisional syndic in the premises and order a meeting of creditors of such debtor to be held according to law for the election of a syndic, and such other business as may lawfully come before it. [Amended by Acts 1888, No. 134]
Art. 3094. If the debtor has solicited the remission of a portion of his debts, the creditors who grant it are alone bound, and this discharge does not in any way affect the others.
Those creditors even, who have consented on condition that the others should also accede to the demands of the debtor, are not bound, if a single one refuse.
Art. 3095. The following classes of persons cannot be compelled to enter into any contract of respite or remission:
Privileged creditors, of what nature soever their privileges may be, and creditors who have a special mortgage by public act.
Minors, for the balance of account of their tutorship.
Therefore, the privileged creditors, and those who have a special mortgage as aforesaid, cannot be deprived by any respite, though agreed to by a majority of the creditors in number and in amount, of the right of seizing the property on which they have a privilege; but if such property does not prove sufficient to satisfy their debt, they shall be restrained from acting for the surplus, either against the person of their debtor, or against those of his effects on which they have no privilege, except after the expiration of the term granted by the respite.
But creditors having a general mortgage are bound by the respite, in the same manner as ordinary creditors. [Amended by Acts 1979, No. 711, §1]
Art. 3096. The time allowed to a debtor in a forced respite can not exceed three years; and if the majority of the creditors in number and in amount have granted to him more time, the creditors who are opposed to the respite may cause this delay to be reduced to the legal time, saving to the debtor the right, when it shall be expired, to call again these creditors in order to obtain a new delay, which, in this last case, shall be granted only, if all these creditors unanimously consent to it.
Art. 3097. Any one who has claimed the benefit of the cession of goods can not afterwards pray for a mere respite.
Art. 3098. When the creditors refuse a respite, the cession of property ensues, and the proceedings continue, as if the cession had been offered in the first instance.
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