Abbildungen der Seite
PDF
EPUB

$ 1575. Undue influence, what. Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another's weakness of mind; or,

3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. En. March 21, 1872. Cal.Rep.Cit. '56, 93; 79, 316; 94, 646; 97, 262. Subd. 1

90, 336; 103, 102; 134, 174, 135, 318. Undue influence vitiating will: See ante, sec. 1272. Rescission of contracts: See post, secs. 1689, 3406.

$ 1576. Mistake, what. Mistake may be either of fact or law. En. March 21, 1872.

Cal.Rep.Cit. 96, 659.

$ 1577. Mistake of fact. Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in:

1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or,

2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed. En. March 21, 1872. Cal.Rep.Cit. 68, 616; 119, 435; 119, 436; 122, 100. Subd. 1

119, 468; 131, 639; 134, 384. § 1578. Mistake of law. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from:

1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,

2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify. En. March 21, 1872. Cal.Rep.Cit. 95, 74; 119, 469. Subd. 1-119, 468; 127, 537;

129, 478; 130, 479; 134, 548. 8 1579. Mistake of foreign laws. Mistake of foreign laws is a mistake of fact. En. March 21, 1872.

Foreign laws, how proved: See Code Civ. Proc., secs. 1900, 1901.

§ 1580. Mutuality of consent. Consent is not mutual, unless the parties all agree upon the same thing in the same sense. But in certain cases defined by the chapter on Interpretation, they are to be deemed so to agree without regard to the fact. En. March 21, 1872.

Cal.Rep.Cit. 60, 392; 137, 692.
Interpretation of contracts: See post, secs. 1635 et seq.

$ 1581. Communication of consent. Consent can be communicated with effect only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication. En. March 21, 1872.

$ 1582. Mode of communicating acceptance of proposal. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. En. March 21, 1872.

Cal.Rep.Cit. 115, 515; 123, 431.

8 1583. When communication deemed complete. Con. sent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. En. March 21, 1872.

Cal.Rep.Cit. 123, 431.

$ 1584. Acceptance by performance of conditions. Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. En. March 21, 1872.

$ 1585. Acceptance must be absolute. An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. En. March 21, 1872.

Cal.Rep.Cit. 82, 87.

$ 1586. Revocation of proposal. A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards. En. March 21, 1872.

Cal.Rep.Cit. 82, 87. $ 1587. Revocation, how made. A proposal is revoked:

1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 1581 and 1583, before his acceptance has been communicated to the former;

2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance;

3. By the failure of the acceptor to fulfill a condition precedent to acceptance; or,

4. By the death or insanity of the proposer. En. March 21, 1872.

$ 1588. Ratification of contract, void for want of consent. A contract which is voidable solely for want of due consent may be ratified by a subsequent consent. En. March 21, 1872.

Cal.Rep.Cit. 130, 433.

$ 1589. Assumption of obligation by acceptance of benefits. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. En. March 21, 1872. Cal.Rep.Cit. 86, 577; 100, 72; 105, 296; 105, 297 ; 105, 298;

113, 231; 113, 236; 113, 561; 120, 574; 130, 433; 137, 25.

CHAPTER IV.

OBJECT OF A CONTRACT. $ 1595. Object, what. $ 1596. Requisites of object. $ 1597. Impossibility, what. $ 1598. When contract wholly void. $ 1599.

When contract partially void. $ 1595. Object, what. The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do. En. March 21, 1872.

Cal.Rep.Cit. 126, 598.

See next section, and post, secs.

Unlawful contracts: 1667 et seq.

Unlawful conditions:

See ante, sec. 1441.

8 1596. Requisites of object. The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed. En. March 21, 1872.

See post, secs. 1667 et seq.

$ 1597. Impossibility, what. Everything is deemed possible except that which is impossible in the nature of things. En. March 21, 1872,

$ 1598. When contract wholly void. Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. En. March 21, 1872.

Cal.Rep.Cit. 132, 65.

§ 1599. When contract partially void. Where a contract has several distinct objects, of which one at least is law. ful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to tne rest. En. March 21, 1872.

Cal.Rep.Cit. 59, 682; 136, 660.

CHAPTER V.

CONSIDERATION. $ 1605. Good consideration, what. $ 1606. How far legal or moral obligation is a good consideration. $ 1607.

Consideration lawful. $ 1608. Effect of its illegality. $ 1609. Consideration executed or executory. $ 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. $ 1613. Same. $ 1614. Written instrument presumptive evidence of consideration. § 1615. Burden of proof to invalidate sufficient consideration.

$ 1605. Good consideration, what. Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise. En. March 21, 1872.

Cal.Rep.Cit. 89, 654; 104, 242; 126, 598.

$ 1606. How far legal or moral obligation is a good consideration. An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise. En. March 21, 1872.

Cal.Rep.Cit. 112, 205.

$ 1607. Consideration lawful. The consideration of a contract must be lawful within the meaning of section 1667. En. March 21, 1872.

Cal. Rep.Cit. 68, 30; 82, 643; 83, 177 ; 125, 122.
Unlawful contracts: See post, secs. 1667 et seq.

$ 1608. Effect of its illegality. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. En. March 21, 1872. Cal.Rep.Cit. 67, 30; 68, 30; 82, 643; 83, 177 ; 96, 112;

125, 122; 131, 384; 136, 67. $ 1609. Consideration executed or executory. A consideration may be executed or executory in whole or in part. In so far as it is executory it is subject to the provisions of chapter IV of this title. En. March 21, 1872.

Cal.Rep.Cit. 90, 375.

$ 1610. Executory consideration. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard. En. March 21, 1872.

Cal.Rep.Cit. 74, 296; 90, 375.

$ 1611. How ascertained. When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the

« ZurückWeiter »