ENROLLED
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ACT No. 277
Regular Session, 2012
HOUSE BILL NO. 764
BY REPRESENTATIVE ABRAMSON
(On Recommendation of the Louisiana State Law Institute)
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
purporting to transfer immovable property is an absolute simulation, except when a21
simulation is presumed or as necessary to protect the rights of forced heirs.22
Revision Comments - 201223
(a) This Article is new. It reproduces the substance of C.C. Art. 184824
(Rev.1984) and clarifies when a counterletter is necessary to prove a simulation. In25 ENROLLEDHB NO. 764
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light of this Article, comment (c) to Article 1848 should no longer be considered in1
the context of proving the existence of simulations.2
(b) For an example of a presumption of simulation, see C.C. Art. 24803
(Rev.1993).4
(c) Under this Article, a relative simulation may be proved by testimonial or5
other evidence. SAUL LITVINOFF, LOUISIANA LAW OF OBLIGATIONS, §6
12.97 (5 LA. CIV. L. TREATISE 2009) ("When the act contained in a written7
instrument is a relative simulation, that is, when the parties intend that their act shall8
produce between them effects different from those recited in the instrument,9
testimonial proof is admissible to prove their true intent.") The jurisprudence admits10
testimonial evidence to prove a relative simulation. See, e.g., Love v. Dedon, 11811
So.2d 122 (La. 1960); McWilliams v. McWilliams, 39 La. Ann. 924 (La. 1887);12
Bennett v. Porter, 58 So.3d 663 (La. App. 3d Cir. 2011); LeBlanc v. Romero, 78313
So.2d 419, 421 (La. App. 3d Cir. 2001); Mathews v. Mathews, 1 So. 3d 738 (La.App.14
2d Cir. 2008). Other articles in the Civil Code recognize that the true cause of an15
obligation can be proved without special formalities. See, e.g., C.C. Arts. 1970 (Rev.16
1984) and 2464 (Rev. 1993).17
(d) Under this Article, even an absolute simulation may generally be proved18
by testimonial or other evidence, unless the simulation purports to transfer19
immovable property. SAUL LITVINOFF, LOUISIANA LAW OF OBLIGATIONS,20
§ 12.97 (5 LA. CIV. L. TREATISE 2009) ("If the simulation is absolute …21
testimonial proof that the written act is actually a simulation may not be admitted22
when the apparent or simulated act contained in a writing purports to effect a transfer23
of immovable property.") See also Ridgedell v. Kuyrkendall, 740 So.2d 173 (La.24
App. 1st Cir. 1999); Scoggins v. Frederick, 744 So. 2d 676 (La. App. 1st Cir. 1999);25
Kinney v. Bourgeois, 2007 WL 2686113 (La. App. 1st Cir. 2007).26
(e) The limitation on the use of testimonial evidence to prove a simulation27
applies only to parties to the transaction. The privilege of attacking a simulation28
with parol evidence "has from the very earliest time been available to creditors."29
Thomas B. Lemann, Some Aspects of Simulation in France and Louisiana, 2930
TUL.L. REV. 22, 43 (1954); Commercial Germania Trust & Sav. Bank v. White, 8131
So.753 (La. 1919) (stating that the rule against parol evidence "is applied only in32
suits between the parties to the instrument").33
(f) Under this Article, forced heirs may protect their legitimes from sham34
transactions by their parents and may use parol or other evidence to prove an35
absolute simulation, even if the absolute simulation concerns a transfer of36
immovable property. This right has existed in the jurisprudence at least since the37
early nineteenth century. See, e.g., Terrel's Heirs v. Cropper, 9 Mart. (o.s.) 35038
(La.1821).39
* * *40
Art. 2028. Effects as to third persons41
A. Any simulation, either absolute or relative, may have effects as to third42
persons.43
B. Counterletters can have no effects against third persons in good faith.44
Nevertheless, if the counterletter involves immovable property, the principles of45
recordation apply with respect to third persons.46 ENROLLEDHB NO. 764
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are additions.
Revision Comments -- 20121
(a) This Article clarifies the law. It reproduces the substance of C.C. Art.2
2028 (Rev. 1984).3
(b) Under this Article, simulations may have effects not only between the4
parties, but also with respect to third persons. For definition of a third person, see5
C.C. Art. 3343 (Rev. 2005).6
(c) Although the predecessor Article stated that counterletters could have no7
effect against third persons in good faith, C.C. Art. 2028 (Rev. 1984), the8
predecessor Article was only partially correct. This Article clarifies the general rule9
that counterletters can "have no effect against third parties in good faith." See10
Peterson v. Skains, 509 So. 2d 197 (La. App. 1st Cir. 1987). When a counterletter11
affects immovable property, however, a counterletter can have effect with respect to12
a third person, provided the counterletter is recorded. See, e.g., State v. Recorder of13
Mortgages, 143 So. 15 (La. 1932) ("Counterletters duly recorded affect all persons14
even creditors from the time of the recording.") If a counterletter affecting15
immovable property is unrecorded it can have no effect as to third persons,16
irrespective of their knowledge or good faith. See, e.g., McDuffie v. Walker, 5117
So.100 (La. 1909); Chachere v. Superior Oil Co., 187 So. 321 (La. 1939) ("It is the18
well settled jurisprudence of this state that third persons dealing with immovable19
property have a right to depend upon the faith of the recorded title thereof and are not20
bound by any secret equities that may exist between their own vendor and prior21
owners of the land."); Musso v. Aiavolasiti, 439 So.2d 1184 (La. App. 4th Cir. 1983)22
("An unrecorded document affecting immovable property is not binding upon third23
parties… Whether [the defendant] knew of the document is irrelevant…."); Tate v.24
Tate, 42 So. 3d 439 (La. App. 1st Cir. 2010) ("Even a third party with actual25
knowledge of a counterletter is not deprived of the protections of the public records26
doctrine when the counterletter is unrecorded.") See also William V. Redmann, The27
Louisiana Law of Recordation: Some Principles and Some Problems, 39 TUL. L.28
REV. 496-97 (1964); C.C. Art. 2028 Comment (d) (Rev. 1984) ("Nevertheless, if the29
counterletter is not recorded, a third person's actual knowledge of it may not deprive30
him of protection under the principles of the Louisiana public records doctrine.")31
Section 2. Civil Code Article 2444 is hereby repealed in its entirety.32
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: