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Legal question about Louisiana Prescription

By November 18, 2005katrina, law

An inquiring legal mind has questions about Governor Blanco’s post-Katrina Executive Order that deals with suspension of peremptive periods (sort of like ‘statutes of limitations’ in common law worlds).  It was sent to me by email. I’m posting the question because it addresses an important legal question. And I think we could all benefit from some open dialogue on this; so all you Louisiana legal eagles feel free to chime in with some analysis. 

In reading Executive Order KBB 05-67, it seems to suggest that we have until at least Friday, November 25, 2005 until the peremptive periods are effective again. What I’m trying to figure out is: Does this mean that any peremptive periods that would have expired during the suspension period expires on the 25th, or does the clock just begin to run again on that day?

E.g., if I have a lien that otherwise would have needed to be filed by Nov. 18, do I have to file on Nov. 25, or do I start counting my preemptive period (e.g., 60 days) from Nov. 25. Here’s my quick analysis thus far: The original order was issued on Sept. 6 and was extended on Sept. 29. The second order was extended again on Oct. 19 to the current date of November 25, 2005. I am looking at the Code and have found that under Art. 3459, the provisions on computation of prescriptive periods applies to peremption as well. Under Article 3472, the effect of a "suspension" of prescription is that the period during the suspension is not counted, and the time commences again upon termination.

I interpret this to mean that the peremptive period for filing a lien did not run between Sept. 6 and November 25. However, under Art. 3461, "Peremption may not be renounced, interrupted, or suspended." I am assuming that the article is not applicable to an executive order by a governor, but I don’t know how it will affect the computation of time issue. I think the preemptive period starts a new on Nov. 25. In any event, HB90 re: Suspension of Prescription appears likely to pass, and may render this discussion moot.

So what do you all think?  Leave a comment here and let’s figure it out together.


P.S. If you appreciate these kinds of observations, you might want to read this as well.

3 Comments

  • Aaron says:

    Where do you perceive it to be illegal? I think it is contained under the governor’s emergency powers, and it is NOT new for a peremptory period to be suspended – judges have done it in the past “in the interest of the public good,” and those have held up to LA Supreme Court scrutiny. I think you should be citing exactly what you think makes her executive order illegal before making the assertion it is.

  • Dan says:

    I have serious doubts about the legality of the governor’s order, no matter how good her intentions. La.C.C. art. 3461, cited above by someone else, is very clear. Peremptive periods may not be interrupted. That is one of the key distinguishments between prescription and peremption. Hopefully the legislature will straighten it out.

  • Aaron says:

    It’s a fairly straight forward answer. If the executive order is legal, which I don’t think anyone seriously doubts it is, then you treat it like a normal “suspension.” Under Louisiana law, when a prescriptive period is suspended, it begins to run from the day it was stopped when the suspensive period is lifted. So if there were 15 days left, that would begin to run anew when lifted. I think the way it should work is the first full day after it is lifted becomes the next calendar day of the prescriptive period, though. That is how all other prescriptive periods work in this state for filing purposes. As far as what effect this has on peremptory periods, I think if they were delineated by the governor’s executive order as being included, they are included and the suspension works the same. It’s definitely not going to restart the period though because Blanco did not “interrupt” the prescriptive periods. When there are such terms of art, you treat them by their legal definitions, not their colloquial definitions. Although a peremptory period is treated as a specific time not to be extended or suspended because of the public policy behind such periods (mortgages and such), where there is an executive order which specifically negates the default rule for peremptory periods, I think the specific executive order should be followed.

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