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LES OBLIGATIONS. By Jean-Louis Baudouin. Les Presses de L'Université de Montréal, Montreal, Quebec, Canada, 1970.; LA RESPONSABILITÉ CIVILE DALICTUELLE. By Jean-Louis Baudouin. Les Presses de L'Université de Montreal, Montreal, Quebec, Canada, 1973.
| Content Provider | Semantic Scholar |
|---|---|
| Author | Litvinoff, Saul |
| Copyright Year | 1974 |
| Abstract | element (always the same in a given kind of contract-for example, the obligation of the vendor which is the cause of the obligation of the vendee) has tortured the minds of inquisitive jurists for a long time. A parallel issue, the question whether the cause is found in a contract or in an obligation arising from it, has inflicted no lesser pain upon the civilian mind. For Baudouin, cause in the abstract is the cause of the obligation, while cause in concrete is the cause of the contract. The former is a concept remarkable for its theoretical futility; the latter is a useful tool to police the lawfulness and morality of agreements. In this context, Baudouin explains the diffidence of Quebec courts in handling the notion of cause while wisely avoiding its theoretical implications. As a part of his discussion of contract formation, Baudouin introduces a general theory of nullities. Nullity is thus defined as a legal sanction attending a failure to meet a requirement, either of substance or of form, which is essential for the formation of a valid contract. The nullity of a contract is carefully distinguished from dissolution for nonperformance and from cancellation by the mutual agreement of the parties, and the effects of the sanction are explored in full. Baudouin is critical of the terminology chosen for the traditional doctrinai distinction between absolute and relative nullity. These words, says he, are one of the reasons why the distinction has been overstressed despite the fact that, in many instances, the nullity of certain acts does not fall entirely within any of those categories, but resembles both. From a viewpoint which is as contemporary as it is realistic, Baudouin criticizes the notion of "inexistent" acts, a notion that, to his mind, has overlooked the importance the law may give to the mere semblance of validity of a particular juridical act. Baudouin's treatise explores in full the effects of contracts vis-dvis the parties and also vis-d-vis third parties. The particular effects of synallagmatic contracts and the related topics, including the exception of nonperformance among others, are treated separately. 1109 1974] LOUISIANA LAW REVIEW Concise and thorough is the discussion of quasi-contract as the second source of obligations. Institutions as deeply rooted in the civilian tradition as the management of the affairs of another, payment of the thing not owed, and unjust enrichment, are explained in such a manner that no relevant aspect is left aside. The subject of effects of obligations is divided into a study of voluntary performance, and a study of forced execution which includes, of course, an intelligent discussion of the requirement of putting the obligor in default. In his treatment of extinction of obligations Baudouin separates delegation from novation. That approach is as practical as fruitful because it enhances the importance of "delegation," an institution too often identified with novation in absolute terms. As presented by Baudouin, delegation is, indeed, a true reservoir of solutions for heretofore almost unsolvable theoretical problems, such as the legal nature of a letter of credit, or of a check, or of a bill of exchange. The publisher's foreword states that Baudouin has followed a classical scheme in his presentation of the general theory of obligations. That statement can be easily controverted. Baudouin conducts his discussion of the subject along the lines of a plan of his own, where topics and institutions fall into place by the weight of their function, rather than by the force of conceptual symmetry. Aside from its remarkable didactic value, such a plan greatly enhances the pleasure |
| Starting Page | 14 |
| Ending Page | 14 |
| Page Count | 1 |
| File Format | PDF HTM / HTML |
| Volume Number | 34 |
| Alternate Webpage(s) | https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=4019&context=lalrev&httpsredir=1&referer= |
| Alternate Webpage(s) | https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=4019&context=lalrev |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
