The French Revision of Prescription: A Model for Louisiana?

53 Pages Posted: 25 Aug 2010 Last revised: 15 Jan 2011

See all articles by Benjamin West Janke

Benjamin West Janke

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

François-Xavier Licari

Université de Lorraine

Date Written: March 24, 2010


Though the draftsmanship of the French and Louisiana Civil Codes is generally celebrated, prescription in both Codes is notoriously defective. Located at the end of both Codes as almost an afterthought, the titles of prescription do not share the same general, relative style contained elsewhere. Part of the cause of the prescription title’s shortcoming is attributable to the content.

The provisions that ring loudest are spelled out in numbers rather than letters. Numbers are blind, arbitrary, cold, and inanimate - ace of society accelerates, prescription becomes anachronistic. It is worth questioning whether the very nature of prescription eludes the capacity for codification.

Prescription’s inherent difficulties have created turmoil for both the French and Louisiana civilian systems. Both have struggled with the arbitrariness of any one particular prescriptive period, attempting to balance objectivism against subjectivism, relativity against certainty, and generality against particularity. Though both France and Louisiana began with what might be considered excessively long general periods of prescription, the French and Louisiana legislatures either whittled down the general period or chiseled out particular actions from it. Over time, these piecemeal amendments eviscerated the core components of the doctrine, causing a desperate need for substantial revision. In 2008, the French legislature took the necessary step and drastically reformed prescription. The general period is now shorter and unified (five years); there are new grounds for suspension (including codified contra non valentem); and a long-stop period is introduced. Louisiana has yet to make any substantial reform to prescription, and revision is long overdue.

This essay will outline the faults in Louisiana and France’s original prescriptive regimes and identify the main innovative trends in the French revision. It then will offer a critical appraisal of the French revision, endorse it as a basis for a Louisiana revision, and discuss how Louisiana jurisprudence is uniquely positioned to integrate the revision in French law. We offer the following as a true dialogue from both the French and Louisiana perspectives about the continuing influence of the French Civil Code in Louisiana, the nature of prescription and its placement in a Civil Code, and the unique opportunity for the Louisiana experience to influence the interpretation of the French revision.

Keywords: Extinctive Prescription, Revision, French Civil Code, Louisiana Civil Code, Estoppel, Contract/Delict Distinction, Discovery Rule, Long-Stop Period, Peremption, Contra Non Valentem, Codification, Contractual Freedom

Suggested Citation

Janke, Benjamin West and Licari, François-Xavier, The French Revision of Prescription: A Model for Louisiana? (March 24, 2010). Tulane Law Review, Volume 85, No. 1, p. 1-53, November 2010, Available at SSRN:

Benjamin West Janke

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC ( email )

201 St. Charles Ave
Suite 3600
New Orleans, LA 70170
United States


François-Xavier Licari (Contact Author)

Université de Lorraine ( email )

Ile du Saulcy
Metz, F-57000

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