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Dore! Energy Corp. v. Massari11/10/2004
must be resolved against granting the motion and in favor of a trial on the merits.
Davis v. M & E Food Mart, Inc., No. 2, 02-0585, p. 4 (La.App. 3 Cir. 10/30/02), 829 So.2d 1194, 1198 citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.
ASSIGNMENT OF ERROR NUMBER ONE
The defendants, Mr. Massari and Mr. Pratt, question whether the prohibition against an assignment contained in the lease includes a prohibition on donations.
Dore! argues that this donation violates the non-assignment clause of the lease. The lease states, ". . . this lease may not be assigned or sublet in whole or in part." This statement is the basis of Dore!s argument against the donation. Dore! makes several arguments in support of this. (1) Definitions contained in Black's Law Dictionary and Louisiana Civil Code article 3506 include donations as assignments; (2) Mr. Massari's affidavit is inadmissible to show the intent of the parties; (3) Contract provisions must be interpreted in a way that renders them effective and not ineffective based on Louisiana Civil Code Articles 2048 and 2049.
The defendants propose several theories as to why the prohibition against assignment does not include a prohibition against donations. (1) Based on Mr. Massari's affidavit, the lease was created for pleasure and not for monetary gain and thus, the clause was meant to prohibit any transfer for the acquisition of money; (2) This is a predial lease which is heritable and transferable by the terms of the lease; (3) Assignment and donation are distinguishable terms, particularly in that a donation is gratuitous and an assignment is onerous; (4) The lease contains a clause that indicates it was meant to be transferable by donation. "This lease is effective February 1, 1983 and is binding on the parties hereto, their heirs, successors and assigns." Accordingly, as the lease is heritable, it is therefore transferable by donation; (5) The Louisiana Civil Code and Louisiana case law supports a finding that an assignment is different from a donation. Defendants cite former Louisiana Civil Code Article 1002, which was eliminated in the 1984 revision, but was in effect at the time of the lease. "The donation, sale, or assignment, which one of the co-heirs makes of rights of inheritance, either to a stranger or to his co-heirs, is considered to be, on his part, an acceptance of the inheritance." La.Civ.Code art. 1002. The defendants argue that if donation meant the same as an assignment then the Civil Code drafters would not have specifically listed both.
DISCUSSION
The pivotal issue in this case is whether an assignment includes a donation. Louisiana Civil Code Article 2047 states, " he words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter." The technical term at issue is "assigned." This contract clearly revolves around a technical matter, i.e., does an assignment include a donation? The clauses at issue in this case are: " his lease may not be assigned or sublet in whole or in part," and " his lease is effective February 1, 1983 and is binding on the parties hereto, their heirs, successors, and assigns."
The distinguished Louisiana law expert, Professor Saul Litvinoff, has written on the nature of an assignment. In the Louisiana Civil Law Treatise on The Law of Obligations, Professor Litvinoff draws a clear distinction between assignment and subrogation. Subrogation and assignment have three main differences.
In the first place, though neither an obligee who subrogates another person
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