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Regular Session, 2012
HOUSE BILL NO. 764
BY REPRESENTATIVE ABRAMSON
(On Recommendation of the Louisiana State Law Institute)
CIVIL/OBLIGATIONS: Provides relative to counterletters
AN ACT1
To amend and reenact Civil Code Articles 1848 and 2028, to enact Civil Code Article 1849,2
and to repeal Civil Code Article 2444, relative to counterletters; to provide with3
respect to testimonial or other evidence as it relates to disproving a writing; to4
provide for proof of simulation; to provide for instances when introduction of5
counterletters is required; to provide for effects of counterletters and simulation as6
to third persons; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. Civil Code Articles 1848 and 2028 are hereby amended and reenacted and9
Civil Code Article 1849 is hereby enacted to read as follows:10
Art. 1848. Testimonial or other evidence not admitted to disprove a writing11
Testimonial or other evidence may not be admitted to negate or vary the12
contents of an authentic act or an act under private signature. Nevertheless, in the13
interest of justice, that evidence may be admitted to prove such circumstances as a14
vice of consent, or a simulation, or to prove that the written act was modified by a15
subsequent and valid oral agreement.16
Art. 1849. Proof of simulation17
In all cases, testimonial or other evidence may be admitted to prove the18
existence or a presumption of a simulation or to rebut such a presumption.19
Nevertheless, between the parties, a counterletter is required to prove that an act20 HLS 12RS-1354 ENGROSSED
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purporting to transfer immovable property is an absolute simulation, except when a1
simulation is presumed or as necessary to protect the rights of forced heirs.2
Revision Comments - 20123
(a) This Article is new. It reproduces the substance of C.C. Art. 18484
(Rev.1984) and clarifies when a counterletter is necessary to prove a simulation. In5
light of this Article, comment (c) to Article 1848 should no longer be considered in6
the context of proving the existence of simulations.7
(b) For an example of a presumption of simulation, see C.C. Art. 24808
(Rev.1993).9
(c) Under this Article, a relative simulation may be proved by testimonial or10
other evidence. SAUL LITVINOFF, LOUISIANA LAW OF OBLIGATIONS, §11
12.97 (5 LA. CIV. L. TREATISE 2009) ("When the act contained in a written12
instrument is a relative simulation, that is, when the parties intend that their act shall13
produce between them effects different from those recited in the instrument,14
testimonial proof is admissible to prove their true intent.") The jurisprudence admits15
testimonial evidence to prove a relative simulation. See, e.g., Love v. Dedon, 11816
So.2d 122 (La. 1960); McWilliams v. McWilliams, 39 La. Ann. 924 (La. 1887);17
Bennett v. Porter, 58 So.3d 663 (La. App. 3d Cir. 2011); LeBlanc v. Romero, 78318
So.2d 419, 421 (La. App. 3d Cir. 2001); Mathews v. Mathews, 1 So. 3d 738 (La.App.19
2d Cir. 2008). Other articles in the Civil Code recognize that the true cause of an20
obligation can be proved without special formalities. See, e.g., C.C. Arts. 1970 (Rev.21
1984) and 2464 (Rev. 1993).22
(d) Under this Article, even an absolute simulation may generally be proved23
by testimonial or other evidence, unless the simulation purports to transfer24
immovable property. SAUL LITVINOFF, LOUISIANA LAW OF OBLIGATIONS,25
§ 12.97 (5 LA. CIV. L. TREATISE 2009) ("If the simulation is absolute …26
testimonial proof that the written act is actually a simulation may not be admitted27
when the apparent or simulated act contained in a writing purports to effect a transfer28
of immovable property.") See also Ridgedell v. Kuyrkendall, 740 So.2d 173 (La.29
App. 1st Cir. 1999); Scoggins v. Frederick, 744 So. 2d 676 (La. App. 1st Cir. 1999);30
Kinney v. Bourgeois, 2007 WL 2686113 (La. App. 1st Cir. 2007).31
(e) The limitation on the use of testimonial evidence to prove a simulation32
applies only to parties to the transaction. The privilege of attacking a simulation33
with parol evidence "has from the very earliest time been available to creditors."34
Thomas B. Lemann, Some Aspects of Simulation in France and Louisiana, 2935
TUL.L. REV. 22, 43 (1954); Commercial Germania Trust & Sav. Bank v. White, 8136
So.753 (La. 1919) (stating that the rule against parol evidence "is applied only in37
suits between the parties to the instrument").38
(f) Under this Article, forced heirs may protect their legitimes from sham39
transactions by their parents and may use parol or other evidence to prove an40
absolute simulation, even if the absolute simulation concerns a transfer of41
immovable property. This right has existed in the jurisprudence at least since the42
early nineteenth century. See, e.g., Terrel's Heirs v. Cropper, 9 Mart. (o.s.) 35043
(La.1821).44
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Art. 2028. Effects as to third persons1
A. Any simulation, either absolute or relative, may have effects as to third2
persons.3
B. Counterletters can have no effects against third persons in good faith.4
Nevertheless, if the counterletter involves immovable property, the principles of5
recordation apply with respect to third persons.6
Revision Comments -- 20127
(a) This Article clarifies the law. It reproduces the substance of C.C. Art.8
2028 (Rev. 1984).9
(b) Under this Article, simulations may have effects not only between the10
parties, but also with respect to third persons. For definition of a third person, see11
C.C. Art. 3343 (Rev. 2005).12
(c) Although the predecessor Article stated that counterletters could have no13
effect against third persons in good faith, C.C. Art. 2028 (Rev. 1984), the14
predecessor Article was only partially correct. This Article clarifies the general rule15
that counterletters can "have no effect against third parties in good faith." See16
Peterson v. Skains, 509 So. 2d 197 (La. App. 1st Cir. 1987). When a counterletter17
affects immovable property, however, a counterletter can have effect with respect to18
a third person, provided the counterletter is recorded. See, e.g., State v. Recorder of19
Mortgages, 143 So. 15 (La. 1932) ("Counterletters duly recorded affect all persons20
even creditors from the time of the recording.") If a counterletter affecting21
immovable property is unrecorded it can have no effect as to third persons,22
irrespective of their knowledge or good faith. See, e.g., McDuffie v. Walker , 5123
So.100 (La. 1909); Chachere v. Superior Oil Co., 187 So. 321 (La. 1939) ("It is the24
well settled jurisprudence of this state that third persons dealing with immovable25
property have a right to depend upon the faith of the recorded title thereof and are not26
bound by any secret equities that may exist between their own vendor and prior27
owners of the land."); Musso v. Aiavolasiti, 439 So.2d 1184 (La. App. 4th Cir. 1983)28
("An unrecorded document affecting immovable property is not binding upon third29
parties… Whether [the defendant] knew of the document is irrelevant…."); Tate v.30
Tate, 42 So. 3d 439 (La. App. 1st Cir. 2010) ("Even a third party with actual31
knowledge of a counterletter is not deprived of the protections of the public records32
doctrine when the counterletter is unrecorded.") See also William V. Redmann, The33
Louisiana Law of Recordation: Some Principles and Some Problems, 39 TUL. L.34
REV. 496-97 (1964); C.C. Art. 2028 Comment (d) (Rev. 1984) ("Nevertheless, if the35
counterletter is not recorded, a third person's actual knowledge of it may not deprive36
him of protection under the principles of the Louisiana public records doctrine.")37
Section 2. Civil Code Article 2444 is hereby repealed in its entirety.38 HLS 12RS-1354 ENGROSSED
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Abramson HB No. 764
Abstract: Revises the articles of the La. Civil Code relating to counterletters and simulation
pursuant to H.C.R. No.130 of the 2008 R.S. which urged and requested the La. State
Law Institute to study and make recommendations on the revision of the laws
relative to the use and prohibition of counterletters. Clarifies the law relating to
counterletters and simulation and provides for instances when counterletters can have
effects.
Present law (C.C. Art. 1848) provides that testimonial or other evidence may not be admitted
to negate or vary an authentic act or an act under private signature, with limited exceptions
in the interest of justice.
Proposed law retains present law but removes "simulation".
Proposed law (C.C. Art. 1849) clarifies the law by providing that testimonial or other
evidence may be introduced to prove, or to rebut, the existence or a presumption of a
simulation in all cases.
Proposed law (C.C. Art. 1849) clarifies the law by providing that if an act is one transferring
immovable property, a counterletter is required to prove that an act is an absolute simulation,
as between the parties.
Proposed law (C.C. Art. 1849) clarifies the law by providing that a counterletter is not
required to prove an absolute simulation, even in the case of immovable property, in cases
when a simulation is presumed or when necessary to protect the rights of forced heirs.
Present law (C.C. Art. 2028) provides that counterletters can have no effects against third
persons in good faith.
Proposed law (C.C. Art. 2028) retains present law and clarifies the law by providing that the
principles of recordation apply as to third persons if the counterletter involves immovable
property.
Present law (C.C. Art. 2444) provides that forced heirs may attack a sale of immovable
property by parents to their children as a disguised donation.
Proposed law repeals this provision of present law.
(Amends C.C. Arts. 1848 and 2028; Adds C.C. Art. 1849; Repeals C.C. Art. 2444).