Having represented Louisiana-based companies in countless business agreements with counterparties in nearly every of these United States, I cannot tell you how many times I’ve been told by lawyers from other states: “Any governing law, except Louisiana…we don’t want to have anything to do with civil law!”  I can’t say I blame folks.  I recall as a young kid in Louisiana trying to figure out what it meant that the Duke boys were from Hazzard county, so I’m sure Louisiana’s sixty-four parishes were equally confusing to kids from Georgia. But as I started to learn about state and local government and the roles and functions of each, it became obvious that parishes and counties perform the same function – they just have different names.

In large part, the same can be said for Louisiana’s civil law system for non-criminal matters and the common law traditions of other states.  While many of the phrases are different, the concepts are the same.  There are, however, a few substantive differences that can trip up the unsuspecting in both business and personal dealings.  A very useful reference guide for cross-border dealings can be found in Stephan Kinsella’s 1994 publication, A Civil Law to Common Law Dictionary (available at https://digitalcommons.law.lsu.edu/lalrev/vol54/iss5/5). I recommend parties on both sides of cross-border deals print themselves a copy; it will help you understand one another.

Differences in Vocabulary

There are plenty of examples of nearly identical legal concepts that have unique names under Louisiana’s civil law system.  As mentioned above, Louisiana parishes are the equivalent of Texas counties; the parish being a holdover from Roman Catholic influence during Spanish and French rule of the territory.

In Louisiana, common law estate planners will encounter the usufruct (common law concept of a life estate), which includes the usufructuary (common law life tenant) and the naked owner (common law remainderman).  Estate planners will also need to be on the lookout for movable and immovable property (the civil law terms for real and personal property), which can be corporeal or incorporeal (the civil law terms for tangible and intangible). There are other less obvious but equally meaningful expressions, like de cujus – a historical Louisiana reference to the more commonly known decedent.

While important to note in cross-border dealings, the likelihood that overlooking a reference to one of these terms will trip up a deal or create major problems is generally low.  There may be some confusion that requires clarification through translation, but in the bigger picture, these are pretty harmless.  The same cannot be said for the substantive differences between Louisiana’s civil law system and those of Texas’s common law doctrines.  Failure to account for these can be catastrophic to everyone involved.

Substantive Differences

We generally think of substantive differences as the characteristics that set one thing apart from another in a meaningful way.  That is how we should approach some of the unique legal concepts under Louisiana’s civil law system – as containing characteristics that set it apart from Texas and other common law states in meaningful ways. I have included a few below as examples, but at a very high level.  In depth analysis and consideration of the multitude of issues that could arise is warranted before any opinion should be given or action taken where unfamiliar civil law concepts are at play.

Reverence for Precedent

Perhaps the most basic of the substantive differences is that between stare decisis and jurisprudence constante.  Texas, like many other states applying a common law case system, follows the principle of stare decisis, the Latin term for “to stand by things decided,” where precedent is given weight because prior court decisions on similar matters will govern future disputes.

In Louisiana, courts are not bound by the doctrine of stare decisis when dealing with precedent, but rather adhere to the civil law tradition that the job of the court is to consider the facts of each case and apply the applicable legal codes to the matter at hand. Whether another court has previously ruled on an identical dispute with the same fact pattern has no formal bearing on a future court’s decision in a subsequent matter…except when it does.  When a particular matter has been ruled on by many courts with a consistent result, greater weight is afforded these decisions in subsequent cases.  This is the concept of jurisprudence constante in Louisiana.  So how many cases does it take to create a rule of law… to rise to the level of jurisprudence constante? That’s a good question.  There is no hard and fast rule that courts go by, but practically speaking even a single case supporting a position can win the day in many Louisiana courtrooms.

The Mineral Estate

Another important difference between Louisiana and Texas deals with the oil and gas industry and has far reaching ripples that can affect many different areas of law. As Texas landowners are generally aware, the acquisition of real property in Texas includes both the surface and the subsurface, including the minerals contained therein.  Unless of course, the mineral estate has been severed from the surface estate, thereby creating two separate and distinct estates occupying a single parcel of land.  Because there can be separate estates, there can be separate owners of each estate.

In Louisiana, separate surface and mineral estates are not possible because under Louisiana law, minerals in place are not susceptible to ownership.  Thus, rather than owning the subsurface minerals, landowners in Louisiana own a right to produce the minerals, which can be conveyed to another through a mineral servitude.  The Louisiana Mineral Code (it is a civil law jurisdiction, after all) defines a mineral servitude as “the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La. R.S. 31:21 (1975). To further complicate matters, a mineral servitude is subject to a ten-year period of prescription (the civil law equivalent of a statute of limitations) for non-use, after which the mineral rights revert back to the landowner unless the servitude owner performs some activity sufficient to interrupt prescription. Clearly this is a complicated body of law that deserves more than a cursory mention.  An excellent overview of the differences between Louisiana and Texas oil and gas law can be found in Patrick Martin’s 1992 article in Louisiana Law Review, Louisiana and Texas Oil & Gas Law: An overview of the Differences (available at https://digitalcommons.law.lsu.edu/lalrev/vol52/iss4/3).

Forced Heirship

As mentioned above, mere differences in terminology should not cause much trouble for estate planners dealing with Texas and Louisiana residents.  However, failing to consider Louisiana’s forced heirship provisions can create a serious problem. In Louisiana, the doctrine of forced heirship has prevailed since its colonization by French settlers at the beginning of the eighteenth century, and it was added to the State’s Constitution in 1921. See Succession of Lauga, 624 So.2d 1156 (La. 1993). Similar to Louisiana’s French roots, Texas’s Spanish roots included the doctrine of forced heirship, but the concept was formally abolished in 1856, and has been a distant memory since. (See chap. lxxxv. 4 Gammel, Laws of Texas (1898) at https://texashistory.unt.edu/ark:/67531/metapth6730/m1/427/).

As its name suggests, the doctrine of forced heirship requires that a portion of the decedent’s estate – the forced portion – be reserved for his forced heirs.  Depending on the number of forced heirs, the forced portion is either twenty-five percent (decedent with one forced heir) or fifty percent (decedent with two or more forced heirs). In the case of multiple forced heirs, they share the forced portion equally. Louisiana law defines forced heirs as “descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.” La Civ. Code Art. 1493.  So long as birth and death records are available, its pretty easy to consider the bright line age test; however, the determination under mental incapacity or physical infirmity can be a bit fuzzy sometimes.

Final Thoughts  

As we’ve seen, certain differences between Louisiana’s civil law system and the common law traditions of Texas can wreak havoc on the uninformed, but others aren’t so scary if you know what to look for.  When you run across an odd reference in a cross-border deal, pull your trusty copy of Kinsella’s A Civil Law to Common Law Dictionary.  It might set your mind at ease.  But if the issue deals with, say, the payment of accrued royalties from an oil well on the Louisiana side of the Sabine River that are in suspense because the long-forgotten, rebel child of the deceased owner of an override, who everyone says was never quite right, filed a petition to reopen the decedent’s succession, you should probably call an attorney who practices in the state. It may be easier in the long run.

ABOUT THE AUTHOR: Drew Smith is Counsel at Rapp & Krock, PC in the Corporate Law and Business Transactions group and is licensed in both Texas and Louisiana.

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