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Copyright (c) Tulane University 1972.
Tulane Law Review

ARTICLE: The Misinterpretation of Article 1801

June, 1972

Tulane Law Review

46 Tul. L. Rev. 859


Vernon V. Palmer *


A good code is an instance of legal planning, designed to meet future needs and avoid history's errors. It strives to be logical, coherent, and complete. And its principles generally invite less confusion and debate than ratio decidendi extracted from judicial decisions adorned with elaborate dicta. The conciseness of its style becomes a factor of its clarity. Due to these virtues, misinterpretation of the law threatens a codal system less frequently than a common-law system. Yet, when misinterpretation materializes, the code's logical character becomes its weakness; the magnitude of the error is likely to be greater than in the common law. When a single provision related to many others is misapprehended the misapprehension may spread. The false deduction, the unwitting assumption, the mislaid emphasis, each in relation to other provisions, may cause consequential damage. Perhaps that is a risk implied in any legal system, but in a planned system error produces wreckage it cannot in a case system.

The misinterpretation may follow a typical progression. An ambiguity, contradiction, or non sequitur is perceived in a provision. To maintain an overall coherence in the code, the problem must be smoothed out, perhaps by drawing a distinction. The smoothing distinction becomes a satisfying gloss. That gloss may breed another. But many glosses in the same place create a conspicuous superstructure, and it cannot be long before someone will notice it, doubt its necessity, and suggest its demolition. An example of this tendency and this process is afforded by the curious ...
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