4. If such consideration, before it is rendered to him, fails In a material respect, from any cause; or, 5. By consent of all the other parties. 58 Cal. 235. § 1690. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation. § 1691. Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and, 2. He must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so. 54 Cal. 190; 55 Cal. 459; 58 Cal. 235, 364, 608. CHAPTER III. ALTERATION AND CANCELLATION. SECTION 1697. Alteration of verbal contract. 1699. Extinction by cancellation, &c. 1700. Extinction by unauthorized alteration. 1701. Alteration of duplicate, not to prejudice. § 1697. A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. [In effect July 1, 1874.] § 1698. A contract in writing may be altered by a con tract in writing, or by an executed oral agreement, and not otherwise. [In effect July 1, 1874.] § 1699. The destruction or cancellation of a written contract, or of the signature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. § 1700. The intentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. § 1701. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section. zal 526 PART III. OBLIGATIONS IMPOSED BY LAW. SECTION 1708. Abstinence from injury. 1709. Fraudulent deceit 1710. Deceit, what. 1711. Deceit upon the public, &c. 1712. Restoration of thing wrongfully acq aired. 1714. Responsibility for wilful acts, negligence, &c. § 1708. EVERY person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. As to what injuries are criminal, see Penal Code, §§ 346-349 $ 1709. One who wilfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. § 1710. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. § 1711. One who practises a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is act ually misled by the deceit. §1712. One who obtains a thing without the consent of its owner, or by a consent afterwards rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of such other person, or unless the transaction was corrupt and unlawful on both sides. § 1713. The restoration required by the last section must be made without demand, except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mistake. $1714. Every one is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief. Penal Code, §§ 346-349. $1715. Other obligations are prescribed by Divisions L and II. of this Code. PART IV. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS. TITLE I. SALE, §§ 1721-1798. II. EXCHANGE, §§ 1804-1807. XV. NEGOTIABLE INSTRUMENTS, §§ 3086-3262. TITLE I. SALE. CHAPTER I. GENERAL PROVISIONS, §§ 1721-1741. II. RIGHTS AND OBLIGATIONS OF THE SELLER, §§ 1748 1778. III. RIGHTS AND OBLIGATIONS OF THE BUYER, §§ 1784 1786. IV. SALE BY AUCTION, §§ 1792-1798. |