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PART II.

CONTRACTS.

Title I. Nature of a Contract, $8 1549-1615.

II. Manner of Creating Contracts, 88 1619-1629.
III. Interpretation of Contracts, 88 1635-1661.
IV. Unlawful Contracts, 88 1667-1676.
V. Extinction of Contracts, 88 1682-1701.

TITLE I.

NATURE OF A CONTRACT.
Chapter I. Definition, 88 1549-1550.

II. Parties, 88 1556-1559.
III. Consent, 88 1565-1589.
IV. Object, 88 1595-1599.
V. Considerations, $$ 1605-1615.

CHAPTER I.

DEFINITION. $ 1549. Contract, what. $ 1550. Essential elements of contract.

§ 1549. Contract, what. A contract is an agreement to do or not to do a certain thing. En. March 21, 1872.

Cal.Rep.Cit. 78, 536.

$ 1550. Essential elements of contract. It is essentia to the existence of a contract that there should be:

1. Parties capable of contracting;
2. Their consent;
3. A lawful object; and,

4. A sufficient cause or consideration. En. March 21 1872.

Cal.Rep.Cit. 64, 110; 85, 30; 115, 515. Subd. 2-135, 563.
Consent: See post, secs. 1565 et seq.
Unlawful contracts: See post, sec. 1667.
Consideration: See post, secs. 1605 et seq.

CHAPTER II.

PARTIES. $ 1556. Who may contract. 1557. Minors, etc.

1558. Identification of parties necessary. 1559. When contract for benefit of third person may be enforced.

$ 1556. Who may contract. All persons are capable of contracting, except minors. persons of unsound mind, and persons deprived of civil rights. En. March 21, 1872.

Cal.Rep.Cit. 54, 178.
Contracts of infants: See ante, secs. 33 et seq.
Contracts of persons of unsound mind: See ante, secs. 38

et seq.

Contracts of married women: 167.

See ante, secs. 158, 159,

$ 1557. Minors, etc. Minors and persons of unsound mind have only such capacity as is defined by part I of division I of this code. En. March 21, 1872.

See ante, secs. 33 et seq. $ 1558. Identification of parties necessary. It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them. En. March 21, 1872.

$ 1559. When contract for benefit of third person may be enforced. A contract, made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it. En. March 21, 1872. Cal. Rep.Cit. 68, 389; 73, 525; 94, 84; 95, 168; 106, 553;

109. 136: 110, 346; 112, 258; 120, 574.

Civ. Code-16

CHAPTER III.

CONSENT. $ 1565. Essentials of consent. $ 1566. Consent, when voidable. $ 1567. Apparent consent, when not free. $ 1568. When deemed to have been obtained by fraud, etc. $ 1569. Duress, what. $ 1570. Menace, what. Š 1571. Fraud, actual or constructive. § 1572. Actual fraud, what. 8 1573. Constructive fraud. $ 1574. Actual fraud a question of fact. § 1575. Undue influence, what. § 1576. Mistake, what. $ 1577. Mistake of fact. $ 1578. Mistake of law. § 1579. Mistake of foreign laws. $ 1580. Mutuality of consent. $ 1581. Communication of consent. $ 1582. Mode of communicating acceptance of proposal. $ 1583. When communication deemed complete. $ 1584. Acceptance by performance of conditions, § 1585. Acceptance must be absolute. § 1586. Revocation of proposal. $ 1587. Revocation, how made. § 1588. Ratification of contract, void for want of consent. § 1589. Assumption of obligation by acceptance of benefits.

§ 1565. Essentials of consent. The consent of the parties to a contract must be:

1. Free;
2. Mutual; and,

3. Communicated by each to the other. En. March 21, 1872. Cal.Rep.Cit. 82, 398; 85, 30; 123, 431. Subd. 3-125, 481 ;

135, 563. Consent, when not free, and effect: Secs. 1566, 1567, infra.

Consent, when not mutual: See sec. 1580.
Consent, how communicated: See infra, secs. 1581 et seq.

$ 1566. Consent, when voidable. A consent which is not free is nevertheless not absolutely void, but may be re scinded by the parties in the manner prescribed by the chapter on rescission. En. March 21, 1872. Cal.Rep.Cit. 71, 440; 82, 399; 85, 30; 95, 639; 110, 379:

126, 604; 129, 82; 129, 84 ; 129, 85. Rescission of contracts: See post, secs. 1688 et seq.: FACS. 3406 et seq.

§ 1567. Apparent consent, when not free. An apparent consent is not real or free when obtained through:

1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake. En. March 21, 1872.
Cal.Rep.Cit. 71, 440; 82, 399; 85, 30; 129, 85. Subd. 5-

134, 548.
Duress defined: Sec. 1569.
Menace defined: Sec. 1570.
Fraud defined: Sec. 1571.
Undue influence defined: Sec. 1575.
Mistake defined: Secs. 1576, 1577.

g 1568. When deemed to have been obtained by fraud, etc. Consent is deemed to have been obtained through one of the causes mentioned in the last section only when it would not have been given had such cause not existed. En. March 21, 1872.

Cal.Rep.Cit. 82, 399; 85, 30; 130, 198.
§ 1569. Duress, what. Duress consists in:

1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;

2. Unlawful detention of the property of any such person; or,

Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive. En. March 21, 1872.

Cal.Rep.Cit. 93, 455; 98, 575; 107, 308; 130, 198.
8 1570. Menace, what. Menace consists in a threat:

1. Of such duress as is specified in subdivisions 1 and 3 of the last section;

2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or,

3. Of injury to the character of any such person. En. March 21, 1872.

Cal.Rep.Cit. 93, 455; 130, 198.

$ 1571. Fraud, actual or constructive. Fraud is either actual or constructive. En. March 21, 1872.

Cal.Rep.Cit. 78, 225; 82, 383; 85, 30.

f 1572. Actual fraud, what. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

3. The suppression of that which is true, by one having knowledge or belief of the fact;

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive. En. March 21, 1872. Cal.Rep.Cit. 56, 365 ; 65, 402; 78, 225; 79, 316; 82, 383;

96, 440; 127, 535; 131, 477 ; 133, 443. Subd. 2 - 84, 649; 103, 42; 134, 663. Subd. 4 - 75, 527; 77, 26; 78, 131 ;

88, 477 ; 88, 565; 93, 359 : 122, 581. Fraudulent conveyance a misdemeanor: Pen. Code, sec. 531.

Fraudulent instruments and transfers: See post, secs. 3439 et seq.

Rescission of contracts for fraud: See post, sec. 1689. Deceit: See post, secs. 1709, 1710.

8 1573. Constructive fraud. Constructive fraud CONsists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. En. March 21, 1872.

Cal.Rep.Cit. 56, 365 ; 65, 402; 91, 18. Subd. 2–134, 663.

8 1574. Actual fraud a question of fact. Actual fraud is always a question of fact. En. March 21, 1872.

Cal.Rep.Cit. 119, 434.

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