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Austrian
Code.

Observations and summary.

The Austrian Code (§§ 934, 935), following the extended interpretation of the Roman rule sanctioned by the prevailing modern opinion in Germany, see Vangerow, Pand. § 611 (3.326), enacts that inadequacy of consideration to the extent of more than one-half in any bilateral contract gives the party injured a right to call upon the other to make up the deficiency or rescind the contract at that other's option. This right may be waived beforehand, and the rule does not apply to judicial sales by auction.

Thus the French Code follows the rule of the Roman law, giving the remedy to the seller only, but adds a qualifying rule of evidence which limits the remedy to cases where there is some ground of suspicion besides the undervalue itself. The Prussian Code reverses the civil law by giving the remedy only to the buyer, and the Austrian Code extends it to both parties, and to every kind of contract for valuable consideration. These discrepancies seem to favour the conclusion that the course our own law has always taken with respect to property in possession, and now takes (since the Act 31 Vict. c. 4) with respect to property in reversion, is on the whole the wisest. It is worth while to observe that the recent Civil Code of Lower Canada has altered the law of that province in the same direction, and declares without exception that persons of full age "are not entitled to relief from their contracts for cause of lesion only" (§ 1012). On the other hand the question was considered in framing the Italian Code, and the rule of the civil law was deliberately adhered to. (Mazzoni, Diritto Civile Italiano, 3.357.)

The different enactments we have mentioned may be thus recapitulated :

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INDEX.

ACCEPTANCE:

of proposal, general but not universal form of agreement, 5
express or tacit, 9

by performing conditions of proposal, 12

double, of same proposal, 28

must be communicated, 30

when the contract is made by correspondence: difficulties of the
subject, 31

theories in English authorities, 32

by post, effectual though never delivered, 35

will not relate back to date of proposal, 36

must be unqualified, 37

examples of insufficient acceptance, 38

of sufficient acceptance, 39

with immaterial or ambiguous addition, 39

by conduct as well as by words, must be certain, 45
by receiving document with special conditions, 45
of misunderstood proposal, effect of, 446, 449

ACCIDENT:

destroying subject matter of contract, effect of, 378, 383

ACCOUNT: action of, 153

ACKNOWLEDGMENT :

of debt barred by Statute of Limitation, 613
(Sec LIMITATION.)

ACQUIESCENCE:

cannot exist without knowledge, 414
as a bar to rescinding contract, 559
lapse of time as evidence of, 560, 561
in cases of undue influence, 607
may work estoppel in equity, 624

"ACT OF GOD":

meaning of no general definition possible, 381

ADVERTISEMENT: contract by, 12, 897.

such contracts not exempt from Statute of Frauds, 22

AGENCY: general theory of, 49, 212

acquisition of rights and duties through, 107

positions of actual or professed agent as regards principal, 107

contracts made by agents, 107, sqq.

contract by authorized agent known to be such, 108

effect of death of principal on subsequent contracts of agent before
notice, 108

when agent is personally liable, 109

how agent's liability may be excluded or limited when he contracts

in his own name, 110

contract by authorized agent, but not known to be such, 111

rights of undisclosed principal, 111

rights of other contracting party, 112

election to sue principal or agent, 113

position of professed agent who has no authority: where a responsible
principal is named, 115

where no responsible principal is named, 118

when professed agent may disclose himself as real principal, 120
sub-agent appointed without authority is not agent of principal, 440

AGENT: authority of, its constitution and end, 107

knowledge of, is knowledge of principal, 109, 113

must not deal secretly on his own account in business of agency, 261
must not sell to or buy from himself, 262

must not profit by his own negligence, 263

must account to principal notwithstanding collateral illegality in the
transaction, 350

statements of, how far binding on principal, 542

always liable for his own wrong, 545

AGREEMENT:

defined, 1

void, what, 1, 7

consent how expressed, 1

analysis of, as accepted proposal, 4

(See ACCEPTANCE, PROPOSAL.)

no contract unless the terms are certain, 42

no contract where the promise is illusory, 43

of LUNATIC not so found by inquisition (which see) not void but
voidable, 103

UNLAWFUL (which see), Ch. VI.

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where there may be an apparent, but no real consent and no con-
tract, 426

election to adopt, where originally void, 465

operation of document as, may be conditional, 472

parol addition to or variation in terms of-effect as regards specific
performance, 482

informal, how affected by Statute of Frauds, 167, 899.

execution of, may be good consideration or accord and
satisfaction, 622

effect of part performance, 623

ante-nuptial, how far made binding by post-nuptial settle-
ment, 625

Savigny's definition of, considered, 647

AGREEMENTS OF IMPERFECT OBLIGATION:
their nature and effects, 609, 8qq.

conflict between lex fori and lex contractus, 615, 618, 637
general results as to, 645

ALIEN, wife of, when she can contract as feme sole, 81

enemies, disabled from suing here but not from contracting, 106

APOTHECARIES:

cannot recover charges unless properly qualified at time of services,
635, 636

ARBITRATION:

agreements for reference, now practically enforceable, 308
right of action may be conditional on award, 309

ARBITRATOR:

can recover remuneration on express contract, 638

ARTIFICIAL PERSON:

nature of, 122

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ARTIFICIAL PERSON-continued.

partnerships and other bodies treated as, by custom though not by
law, 123

separate estate of married woman, analogous to, 91
And see CORPORATION.

ASSIGNMENT: of CONTRACT (which see), 224, 877.

ASSUMPSIT:

action of, its introduction, 154

ATTORNEYS AND SOLICITORS. See SOLICITOR.

AUCTION: sale by, formation of contract in, 13
where sale without reserve, 15

employment of puffers at, 493

effect of misleading particulars at, 516

AWARD:

whether stranger can be bound by, 210

mistake in, can be rectified only by the Court, 419

BANKRUPTCY :

loan obtained by infant under pretence of full age, provable in, 77
anomalous effects of, on contractual rights, 214

secret agreements with particular creditors void, 256

laws, attempts to evade, 272

BARRISTER:

fees of, for advocacy not recoverable from client, 638

for non-litigious business, qu., 639

fees paid by client to solicitor, whether recoverable by counsel, 640
judicial notice of counsel's fees in taxing costs, 641

BILL OF EXCHANGE :

infant's, not void but voidable, 57

is not an equitable assignment, 95, n.
And see NEGOTIABLE INSTRUMENTS.

BILL OF LADING:

transfer of contract by indorsement of, 241
is not properly negotiable, 244

effect of misdescription of goods in, 506

BOND:

of infant, voidable, not void, 52

with unlawful condition, void, 345

is absolute if the condition is impossible at the time, but discharged

if it subsequently becomes impossible, 402

with alternative conditions, where one impossible, 403

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