Bullock, Geraldine E.

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Louisiana Law ReviewVolume 13 | Number 4May 1953Contracts - Pre-Existing Legal Duty - LouisianaLawGeraldine E. BullockThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationGeraldine E. Bullock, Contracts - Pre-Existing Legal Duty - Louisiana Law, 13 La. L. Rev. (1953)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol13/iss4/8NOTESIn Washington, Arizona, Nevada and Texas the division ofthe community is left to the discretion of the court.1 2 The Texasstatute concerning alimony pendente lite is most similar to ours,for it is proportioned to the wife's needs and the husband'smeans.' 3 But even in that state the results reached may differsubstantially from ours, for Texas spouses may dissolve the com-munity at will by mutual agreement.' 4Thus it is seen that the statutes and jurisprudence of othercommunity property states shed very little light upon the problemin Louisiana. The major reason for this is the unique stand takenin Louisiana, as opposed to the other states, that the spouses havea very definite vested interest in the community assets. Otherstates either do not have such a vested interest by the spouses orsuch interest is indefinite and may be changed by the courtdepending upon the circumstances.' 5 It is believed, therefore,that the solution to the problem lies wholly in a more competeanalysis of Article 148 and in a re-examination of prior juris-prudence.Maynard E. CushCONTRACTS-PRE-EXISTING LEGAL DUTY-LOUISIANA LAWPlaintiff, under a verbal contract of employment, sought torecover from defendant the value of his services for the demoli-tion and removal of a "steel reenforced" concrete foundation ofa diesel engine in defendant's plant. The day after work wasbegun on the removal of the foundation, the plaintiff informedthe defendant that he could not afford to work any longer underthe original contract, for it had not been contemplated that theconcrete would be "full of iron." Another contract was executedat that time whereby the plaintiff agreed to carry on the workuntil Tuesday morning, meaning the second day after that on12. However, in some states the court may not only (1) award the hus-band's entire share of community assets to the wife, but also (2) may ordersome of the husband's separate assets to be paid over to her. As to (1)above, see N.M. Stat. 1941, § 25-716. Cf. Harper v. Harper, 54 N.M. 194,217 P. 2d 857 (1950). In this case the court called the award of assets "lump-sum alimony." As to (2) above, see Remington's Wash. Rev. Stat. 1932,§ 26.08.110. Cf. Hale v. Hale, 76 Wash. 34, 135 Pac. 481 (1931).13. Vernon's Tex. Stat. 1948, Art. 4637.14. Id. at Art. 4624a.15. The rights of both parties depend on the discretion of the court. Thusthe court's only restraint is its own sense of justice. See notes 12 and 13,supra.19531LOUISIANA LAW REVIEWwhich the conversation took place, and the defendant agreed topay plaintiff an additional $100. When an inquiry was made bythe plaintiff as to the continuance of the work after Tuesday, thedefendant then said: "I don't care what it will cost, get it out."The plaintiff completed the work and sued the defendant forcompensation. In rendering the decision, the court upheld themodified or new promise on the ground that it constituted agood faith setlement of a substantial dispute between the partiesas to the effect or construction of the original contract. Lee v.National Cylinder Gas Company, 58 So. 2d 568 (La. 1952).Achieving the result under the theory that the modifiedagreement was a settlement or compromise of existing differencesbetween the parties is neither questionable nor unique. Innumerous decisions when a dispute has developed over theoriginal contract, the subsequent promise has been considered a"compromise of differences" and judgment rendered for theplaintiff.1 Nevertheless, the court in the instant case, as in pre-vious decisions rendered under this theory,2 approved, or atleast recognized, the rule stated in Monroe Investment Companyv. Ford . The rule of the Ford case had been directly extractedfrom the common law doctrine set forth in Corpus Juris:"A promise to do what the promisor is already bound todo cannot be a consideration, for, if a person gets nothing inreturn for his promise but that to which he is already legallyentitled, the consideration is unreal. Therefore, as a generalrule, the performance of, or promise to perform, an existinglegal obligation is not a valid consideration. ' 4The Louisiana courts, although often reaching a satisfactoryresult by application of this common law concept of considera-tion, have neglected to use the civilian concept of cause, whichin many instances would have facilitated the rendering of deci-sions. While one cannot bind himself in the common law unlesshe receives something in return for his promise to be bound,'the civil law doctrine of cause exalts the individual will and pro-1. Moorman v. Plummer Lumber Co., 113 La. 429, 37 So. 17 (1904);Standard Electric Construction Co. v. Frick Co., Inc., 16 La. App. 331, 134 So.322 (1931); Breard v. Pyramid Oil and Gas Co., Inc., 191 La. 420, 185 So. 303(1938).2. Standard Electric Construction Co. v. Frick Co., Inc., 16 La. App. 331,134 So. 322 (1931); Breard v. Pyramid Oil and Gas Co., Inc., 191 La. 420, 185So. 303 (1938).3. 168 La. 475, 122 So. 586 (1929).4. 13 C.3., Contracts 351, § 207 (1917).5. Restatement, Contracts § 75 (1932).[VOL. XIIINOTESvides that the promisor can bind himself merely by expressinga will to do so.6 Thus, had the Louisiana courts followed thiscivilian principle, the decision would hinge around the questionof fact: Was the promisor's new promise given because of duressor coercion, or was it voluntarily given? In those situations inwhich the new promise is practically extorted, a real will to bindis lacking and no contract results. In cases where the new prom-ise is voluntarily given, the will to bind exists and results in acontract.The great exponents of the civil law in France have accordedthis theory full recognition. There is substantial agreement thata promise to do more than one is legally bound to do may bebased on an invalid cause. Pothier, Aubry and Rau, and Baudry-Lacantinerie suggest that the promise has an illicit cause whenit is the debtor who exacts the promise in return for doing whathe is already obligated to do.7 Demolombe disregarded the con-cept of illicit cause but achieved the same result on the notionthat the obligation is invalid under Article 1133 of the FrenchCivil Code.8 A study of the Louisiana jurisprudence makes itapparent, however, that the Louisiana courts have either failedto consider this treatment of the question or have not thought itto be the proper way of solving the issue.There is another approach which excludes the use of thedoctrine of consideration and under which the courts could reachresults, in most cases, exactly corresponding to those of the com-mon law courts? The Anglo-American opinions make it evidentthat in most cases the issue of enforceability actually turns onthe good or bad faith of the parties. The cases manifest a ten-dency to apply the principle strictly when the circumstancesshow that the new promise was not voluntarily made, but givenbecause of duress or coercion.' On the other hand, the courtsoften make an exception in cases where the new promise was6. Smith, A Refresher Course in Cause, 12 LOUISIANA LAW REvIEw 2, 4(1951).7. 4 Aubry et Rau, Cour de Droit Civil Frangais 550 (5 ed. 1902); 2Baudry-Lacantinerie, Pr6cis de Droit Civil, no 124 (13 ed. 1925); 1 Pothier,Obligations 126, no 46 (Evans, 1853); Snellings, Cause and Consideration inLouisiana, 8 Tulane L. Rev. 178, 200 (1933).8. 1 Demolombe, Cours de Code Napoleon XXIV, Trait6 des Contrats, no380 (1 ed. 1877); Snellings, Cause and Consideration in Louisiana, 8 TulaneL. Rev. 178, 200 (1933). Note that Article 1133 of the French Civil Code corre-sponds to Article 1895 of the Louisiana Civil Code.9. Smith, A Refresher Course in Cause, 12 Louisiana Law Review 2, 28(1951).10. Davis & Co. v. Morgan, 117 Ga. 504, 43 S.E. 732 (1903); Lingenfelder v.Wainwright Brewing Co., 103 Mo. 578, 15 S.W. 844 (1890).1953]LOUISIANA LAW REVIEWvoluntary and prompted by a recognition of the unforeseen hard-ship involved in the performance of the original contract.1 'Where the facts of a case are such that the court feels that theparties have in good faith adjusted their differences, it is verylikely to make use of the argument that the new agreement isvalid for the reason that there had been a rescission of the for-mer contract.12 It is believed that in most cases of this kind thereis lacking a solid factual basis for finding mutual cancellationand that to rest a decision upon a rescission is to rest it upon afiction. Louisiana courts could, by applying Article 1901 of theCode, which specifically provides that obligations must be per-formed in good faith, refuse to give validity to a promise ofadditional compensation except in cases where the plaintiff'sconduct is not morally blameworthy and where the new promisewas given because of some unforeseen hardship.The language of the instant case is, however, in line withpast decisions regarding the performance of pre-existing legalduties. The opinion of the court indicates that if necessary itwould not have hesitated to resort to the use of the common lawconcept of consideration in rendering the judgment. As the juris-prudence stands at present, a pre-existing obligation will be heldenforceable if the promise can be supported as a "compromiseof differences and not a gratuitous undertaking." If the facts ofthe case will not lend themselves to a compromise situation, theobligation will be held invalid for lack of common law con-sideration.Geraldine E. BullockLEGISLATION-CONSTRUCTION OF STATUTESIn State v. St. Julian' the Supreme Court dealt with thequestion as to which of two acts passed at the same session ofthe Legislature purporting to amend the same section of theRevised Statutes should be given effect. This problem is onewhich the Supreme Court will be called upon to decide again inthe near future, because there are several other instances in11. Linz v. Schuck, 106 Md. 220, 67 Atl. 286 (1907); Munroe v. Perkins, 26Mass. 298, 20 Am. Dec. 475 (1930); Schwartzreich v. Bauman-Basch, Inc., 231N.Y. 196, 131 N.E. 887 (1921).12. Martiniello v. Bamel, 255 Mass. 25, 150 N.E. 838 (1926); Munroe v.Perkins, 26 Mass. 298, 20 Am. Dec. 475 (1830); Schwartzreich v. Bauman-Basch, Inc., 231 N.Y. 196, 131 N.E. 887 (1921).1. 221 La. 1018, 61 So. 2d 464 (1952).[VOL. XIII

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Contracts - Pre-Existing Legal Duty - Louisiana Law

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