Table of Contents
TITLE XVI – OF RESPITE
Art. 1. A respite is an act by which a debtor who has failed, or is in such circumstances as to render his failure unavoidable, or is in the impossibility to satisfy his debts at the time they are due, transacts with his creditors and obtains from them time or delay for the payment of the sums which he owes to them and even sometimes a remission of a part of the said debt.
Art. 2. The respite is 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 proposals 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. 3. The forced respite takes place when the creditors do not all agree, for then the opinion of the three fourths in number and in amount prevails over that of the creditors forming the other fourth, and the judge shall approve such opinion and it shall be binding on the other creditors who did not agree to it, except if the debt results from a deposit or from a demand for a marriage portion made by a wife against her husband or from a balance of account due by tutors or curators to those whose estate they administered.
Art. 4. But in order that a respite may produce that effect, it is necessary:
1st, That the debtor should depose in the clerk’s office of the judge to whom he presents his petition for calling his creditors, a true and exact schedule sworn to by him, of all his moveable and immoveable property as well as of his debts;
2d, That a meeting of the creditors of such debtor, be called on at the office of a notary public by order of the judge, to which meeting the said creditors shall be summoned to attend by processes issued from the court of said judge, if said creditors lived within the parish where said meeting shall take place or by letters addressed to them by said notary, if they are not residing in the parish, but within the territory;
3d, 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 living out of the said parish but within the territory; and if any of the creditors reside out of the territory, the judge shall appoint a counsel to represent them in the meeting of the creditors;
4th, That this meeting as well as its object be advertised three times in both the English and French languages, by papers posted up in the usual places, or at least in two of the news papers printed in the city of New-Orleans;
And, 5th, That the creditors called on should take an oath before the notary in whose office the meeting takes place, of the amount and truth of their respective claims.
The creditors who have not taken this oath cannot be reckoned in the number of the creditors who possess three fourths of the debt.
Art. 5. 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. 6. The creditors who have a privilege, such as venders, cannot be compelled to consent to any respite, remission or other concordate on account of the sums for which they have such privilege.
Therefore they cannot be deprived by any respite though agreed to by three fourths 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 do 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.
The creditors on mortgage are bound by the respite in the same manner as ordinary creditors but they are not obliged to consent to any remission.
Art. 7. The time allowed to a debtor in a forced respite cannot exceed three years and if the creditors of the three fourths 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. 8. Any one who has claimed the benefit of the cession of goods, cannot afterwards pray for a mere respite.
|< Previous | Next >||© Manuscript notes copyright 1968 by Louis V. de la Vergne.|