Lacoste v. Guidroz - 47 La. Ann. 295, 16 So. 836 (1895)

Rule:

Article 1881 of our own Code declares that "engagements made through error, violence, fraud or menace are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, violence or menace, or by the representatives of such parties," and the next, Art. 1882, announces that "they may be avoided either by exception to suits brought on such contracts or by an action brought for that purpose."

Facts:

Plaintiff Honore Lacoste’s counsel contended that the exclusion of the testimony "was a misapplication of the Article 2281, which contemplated an existing, undisputed marriage, during which, on grounds of public policy, the spouses are not allowed to testify for or against each other -- that in the case at bar the issue was whether there was a marriage. That to exclude either party from testifying is to prejudge the case -- that it is a petition of principle to hold, in anticipation of the judgment, that there is a valid existing marriage disqualifying the spouses as witnesses, since the decree pronouncing its nullity ab initio demonstrates that they were ever married in the eye of the law -- never husband and wife. The present action was grounded upon the claim that the consent which the plaintiff gave to the marriage was not free and deliberate but forced upon him by violence and under the operation of fear on his part of a threatened prosecution for a felony which he had not committed, and of which he was innocent. Plaintiff contended that he had the right by reason of the allegations and prayer of his petition to stand before us prima facie as not married, and that until he shall have been judicially declared to have been legally married, he is entitled to testify as to the fact of marriage, and as to the circumstances leading up to his apparent consent.

Issue:

Was the exclusion by the court of the testimony of Honore Lacoste, the plaintiff, correct?

Answer:

Yes.

Conclusion:

The difference between defective consent and absolute want of consent was distinctly noted. Article 1881 of our own Code declares that "engagements made through error, violence, fraud or menace are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, violence or menace, or by the representatives of such parties," and the next, Art. 1882, announces that "they may be avoided either by exception to suits brought on such contracts or by an action brought for that purpose." Under this article, a contract entered into under the influence of error, fear, violence or menace, stands until set aside. Assuming that plaintiff in this case under its evidence would be entitled to a judgment, a decree of absolute nullity of marriage would not conform to the exact prayer of his petition. In view of this fact the plaintiff must be, for the time being, at least, held to be the husband of the defendant, and not competent to testify. Prior to the marriage, no affidavit had been made against the plaintiff, nor had he been arrested. If his action in consenting to the marriage was based upon fear or violence, it was of a prospective affidavit, arrest and prosecution. It may be true that plaintiff was not fully willing to marry the defendant, but having consented to do so, and having done so, there is nothing before us which would warrant his avoiding the marriage.