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ACT No. 186
Regular Session, 2010
HOUSE BILL NO. 142
BY REPRESENTATIVE ABRAMSON AND SENATOR WALSWORTH
(On Recommendation of the Louisiana State Law Institute)
AN ACT1
To amend and reenact Title VIII of Book III of the Louisiana Civil Code, to be comprised2
of Civil Code Articles 2660 through 2667, relative to the contract of exchange; to3
provide for the definition of exchange; to provide for rights and obligations of the4
parties to a contract of exchange; to provide for rights of the party evicted in5
exchange; to provide for rescission for lesion in exchange; to provide for application6
of the rules of sale in exchange; and to provide for related matters7
Be it enacted by the Legislature of Louisiana:8
Section 1. Title VIII of Book III of the Louisiana Civil Code, comprised of Civil9
Code Articles 2660 through 2667, is hereby amended and reenacted to read as follows: 10
Art. 2660. Exchange, definition11
Exchange is a contract, by which the parties to the contract give to one12
another, one thing for another, whatever it be, except money; for in that case it would13
be a sale.14
Exchange is a contract whereby each party transfers to the other the15
ownership of a thing other than money.16
Ownership of the things exchanged is transferred between the parties as soon17
as there is agreement on the things, even though none of the things has been18
delivered.19 ENROLLEDHB NO. 142
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If it is the intent of the parties that the transfer of ownership will not take1
place until a later time, then the contract is a contract to exchange.2
Revision Comments -- 20103
(a) This Article combines the provisions of Articles 2660-2661 of the4
Louisiana Civil Code (1870). It does not change the law.5
(b) Consent alone is sufficient to effect a transfer of ownership to the things6
given and received by each of the parties to the exchange. Thus, as under present7
law, exchange remains a consensual contract.8
(c) Under a contract of exchange, each party transfers to each other the9
ownership of a thing other than money. If the "thing" given by one of the parties is10
money, then the transaction is a sale rather than an exchange.11
(d) The transfer of a thing in return for services to be rendered is not an12
exchange but an innominate contract. See Louisiana Civil Code Article 1914;13
Thielman v. Gahlman, 119 La. 350, 44 So. 123 (1907); Hearsey v. Craig, 126 La.14
824, 53 So. 17 (1910); 10 Planiol et Ripert, "Traité pratique de droit civil français"15
29 (1932).16
Art. 2661. Completion of contract by consent Rights and obligations of the parties17
An exchange takes place by the bare consent of the parties.18
Each of the parties to a contract of exchange has the rights and obligations19
of a seller with respect to the thing transferred by him and the rights and obligations20
of a buyer with respect to the thing transferred to him.21
Revision Comment – 201022
This Article is new. It is not intended to change the law, however. It gives23
formulation to a principle implicit in Articles 2660 and 2667 (1870).24
Art. 2662. Rescission where one party not owner of thing exchanged Rights of party25
evicted26
If one of the exchangers, after having received the thing given to him in27
exchange, learn that the other exchanger is not the proprietor of that thing, he can not28
be compelled to deliver that which he had promised to give in exchange; he is only29
bound to return the thing which he has received.30
A person evicted from a thing received in exchange may demand the value31
of the thing from which he was evicted or the return of the thing he gave, with32
damages in either case.33 ENROLLEDHB NO. 142
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Revision Comments - 20101
(a) This Article changes the law in part by providing an evicted party to a2
contract of exchange the election between two remedies, without foreclosing the3
recoverability of damages, if appropriate.4
(b) The election by the evicted party to dissolve the contract and obtain the5
return of the thing given by him in exchange does not prevent the recoverability of6
damages, if appropriate. Recoverability of damages is appropriate in accordance7
with the Civil Code Articles governing damages in eviction cases. See Civil Code8
Articles 2506 – 2509.9
(c) If the immovable given in exchange by the party evicted has been10
transferred to a third party, the right of the evicted party to recover the immovable11
given by him is subject to the public records law. See Louisiana Civil Code Articles12
3338-3353. It is the intent of this Article that the rights of the transferee prime the13
rights of the evicted party to recover the immovable in the same situation as in a14
sales transaction.15
Art. 2663. Rights of party evicted by judgment Rescission for lesion in contracts of16
exchange17
The exchanger, who is evicted by a judgment of the thing he has received in18
exchange, has his choice either to sue for damages or for the thing he gave in19
exchange.20
A party giving a corporeal immovable in exchange for property worth less21
than one half of the fair market value of the immovable given by him may claim22
rescission on grounds of lesion beyond moiety.23
Revision Comments – 201024
(a) This Article changes the law in part by providing a different rule for25
determining when a party may claim lesion. Under Articles 2664-2666 (1870),26
rescission for lesion can be obtained in two situations: (1) In case of an exchange of27
immovable property for movables, the person that gave immovable property can28
obtain rescission if the movables received are not worth more than one half of the29
value of the immovables; and (2) When an immovable is exchanged for another30
immovable with a balance paid in movables. In the second situation, only the person31
that paid the balance is entitled to demand rescission. The exchanger that received32
the balance does not have an action for lesion. Saizan v. Century 21 Gold Key33
Realty, Inc., 447 So.2d 41 (La. App. 1 Cir. 1984).34
(b) Under this Article, a party that gives a corporeal immovable in exchange35
may claim lesion if the things that he receives in return, movable or immovable, are36
worth less than one half the fair market of the immovable given him.37
(c) It is the intent of this Article that rescission for lesion not be allowed in38
the contract of exchange except as provided in this Article. The text of Article 266439
(1870), which provided that lesion was not available in exchange transactions except40
in the cases provided in the Civil Code, has not been reproduced as unnecessary.41
This omission is not intended to change the law.42 ENROLLEDHB NO. 142
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Art. 2664. Rescission for lesion Application of the rules of sale1
The rescission of the contract on account of lesion is not allowed in contracts2
of exchange, except in the following cases.3
The contract of exchange is governed by the rules of the contract of sale, with4
the differences provided in this Title.5
Revision Comments – 20106
This Article amends the language of present Article 2667 without intending7
to change the law. The rules of the contract of sale govern exchange transactions8
with the differences provided in the Articles of Exchange.9
Art. 2665. Rescission for lesion where immovable exchanged for movable10
[Reserved.]11
The rescission on account of lesion beyond moiety takes place, when one12
party gives immovable property to the other in exchange for movable property; in13
that case, the person having given the immovable estate may obtain a rescission, if14
the movables which he has received, are not worth more than the one-half of the15
value of the real estate.16
But he who has given movable property in exchange for immovable estate,17
can not obtain a rescission of the contract, even in case the things given by him were18
worth twice as much as the immovable estate.19
Art. 2666. Rescission for lesion where balance paid in money or immovables20
[Reserved.]21
The rescission on account of lesion beyond moiety, may take place on a22
contract of exchange, if a balance has been paid in money or immovable [in23
movable] property, and if the balance paid exceeds by more than one-half the total24
value of the immovable property given in exchange by the person to whom the25
balance has been paid; in that case it is only the person who has paid such balance26
who may demand the rescission of the contract on account of lesion.27
Art. 2667. Application of general rules of sale [Reserved.]28
All the other provisions relative to the contract of sale apply to the contract29
of exchange.30 ENROLLEDHB NO. 142
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And in this last contract each of the parties is individually considered both1
as vendor and vendee.2
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: