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Dore! Energy Corp. v. Massari11/10/2004
tablished." La.Civ.Code art. 1467.
This distinction between donations and assignments is further evidenced in the code by the following language, " ights and obligations arising from a contract are heritable and assignable unless the law, the terms of the contract or its nature preclude such effects." La.Civ.Code art. 1984 (emphasis added). The drafters' choice of words in article 1984, clearly indicate an intent to distinguish donations from assignments because for something to be heritable it must be capable of being donated, and donations are gratuitous. Under this article, contracts may be donated or assigned unless the contract contains provisions to the contrary. Moreover, this article also supports the appellants' position that donations and assignments are separate, distinct modes of transferring ownership as suggested through prior Louisiana Civil Code Article 1002. "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. These articles support Professor's Litvinoff's position that an assignment is an onerous transaction and also the appellants' contention that an assignment is not all inclusive as it does not include donations.
We note further that the code articles dealing with assignments appear in Title VII entitled SALES, and not in Title II, the book of DONATIONS. It is evident from the placement of the code articles that the redactors recognized "assignment" and "donation" to be different forms of conveyance, as the only time assignment is used is in the articles on sales. The code treats the two concepts as separate and distinct modes of transferring ownership.
Professor Litvinoff's writings establish that assignments have traditionally been associated with onerous transactions. This distinction has also been recognized in Louisiana jurisprudence with courts drawing a distinction between assignments and donations and equating assignments with sales. "Therefore, this court concludes that, under Louisiana law, a victim's personal injury right is strictly personal. Because it is strictly personal, it may not be donated or assigned." Covert v. Liggett Group, Inc., 750 F.Supp. 1303, 1309 (M. D. La. 1990). Clearly if assign included donation, then the courts would not continue to differentiate between the two by including both terms. Also in Succession of Bernice Addison Brumfield v. Brumfield, 96-7508 (M.D. La. 1998) 1998 WL 834999, the court stated, " ince Noel A. Brumfield executed the renunciation in exchange for the valuable consideration mentioned above, it follows that such a transaction was a sale or assignment of Noel's rights in the succession." This case suggests that sale and assignment are analogous in that each is an onerous conveyance.
In Berwick Mud Co., v. Stansbury, 205 So.2d 147, 149 (La.App. 3 Cir. 1967) this court stated, " t is well settled that the assignment of a lease is a sale of a real right." Also, in Mire v. Sunray DX Oil Co., 285 F.Supp. 885, 890 (W.D. La. 1968), the court noted that " o sublease is to lease in whole or in part the thing of which one is the lessee, with reservation of an interest in it by the original lessee, or sublessor; while to assign a lease is to sell it." Thus, we see that both the drafters of the Civil Code and the Jurisprudence of our courts recognize the distinction between donations and assignments.
Dore!s primary contention is that an assignment includes a donation based on Black's Law Dictionary and the Louisiana Civil Code Article 3506. Dore! argues that the Civil Code's definition of assigns covers all types of transfe
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