Opinion Number ( 2006 )

Dear Ms. Frazier:

This office is in receipt of your opinion request under letter dated February 24, 2006. The opinion request has been assigned to me for research and reply.

The resolution by the Louisiana Manufactured Housing Commission requested a legal opinion from this office concerning what activities constitute a "sell" and "offer for sale" in Louisiana as utilized in LSA-R.S. 51:911.24(A). This provision generally provides that no manufacturer, retailer, salesman, developer, or an employee of a developer shall sell or offer for sale any mobile home or manufactured housing unless he has obtained a valid manufacturer's, retailers, or salesman's license, whichever is applicable.

While section 911.22 of Title 51, Chapter 2, Part XIV, et. al. ("Uniform Standards Code for Manufactured Housing") provides for definitions of developer, retailer, and salesman, neither the statute nor the case law interpreting Uniform Standards Code for Manufactured Housing provide definitions for the terms "sell" or "offer for sale".

"When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole." LA-C.C. Art. 12.

The sale of a manufactured home takes place in the context of commerce wherein the ownership of a thing is transferred for money by the contract of sale. Book Three of the Louisiana Civil Code pertains to the contract of "sale" and is where the search for the definitions to the terms "sell" and "offer to sale" should begin.

Sell

Pursuant to Louisiana Civil Code Article 2439, "sale" is defined as "a contract whereby a person transfers ownership of a thing to another for a price in money." The thing, the price, and the consent of the parties are requirements for the perfection of a sale. LA C.C. 2439.

The active tense of the word "sale" is "sell." "Sell" is not defined by the Louisiana Civil Code therefore one must look to the common meaning of the term. As defined by the Merriam-Webster Dictionary, "sell" is a verb which means "to give up (property) to another for something of value (as money)". Therefore, one can confer that to "sell" a manufactured home is the act of giving up ownership of a manufactured home to another for a price in money.

Offer For Sale

An "offer for sale" must be further broken down. Professor Saul Litvinoff in his article Offer and Acceptance in Louisiana: Acomparative Analysis: Part I — Offer, 28 La.L.Rev. 1, 3 (1967), discussed the elements of an offer. Professor Litvinoff wrote:

An offer is a proposal to do something or to refrain from doing something in return for a counter-promise, an act, or forebearance. To be considered properly as such, the offer must fulfill the following three requirements clearly established in the Louisiana Civil Code:

(a) The design to give the other party the right of concluding the contract by his assent.

(b) The offeror's intention to obligate himself.

(c) A serious intent.

When requirement (a) is absent, the proposition cannot be considered an offer, but an invitation to negotiate, or an expression of willingness to receive an offer from the other party. The intention required under (b) must be that of creating a legal obligation — and not one in the moral sense or a duty in conscience. Requirement (c) will exclude, as a real offer, a proposition made in jest, as a part of a game, or at the peak of an argument. It is, however, necessary that the joke or game be in accord with the circumstances or usages; otherwise, if the addressee of such a proposition could have reason to assume it to be a real offer, his acceptance would create a contract.

Analyzing "offer for sale" in light of the Uniform Standards Code for Manufactured Housing, the Civil Code's definition of the term "sale," and Professor Litvinoff's discussion of the term "offer," an "offer for sale" of a manufactured home occurs when the following are present:

(a) The design to give the other party the right of concluding the contract by his assent.

(b) The offeror's intention to obligate himself;

(c) A serious intent;

(d) Thing; and

(e) Price.

In order for the sale to be perfected and completed, the thing, the price, and the consent of the parties are required. LA C.C. 2439.

It is therefore the opinion of this office that La. R.S. 51:911.24 requires a manufacturer, retailer, salesman, developer, or an employee of a developer must have a valid manufacturers, retailers, or salesman license to sell or offer to sell a manufactured home.

I trust this addresses your request. Please contact us if we can be of further assistance.

Yours very truly,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

RICHARD L. MCGIMSEY Assistant Attorney General

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