SECOND GROUP.

Those incidents and qualities which do not primarily involve the validity of

the contract, but which directly affect the right to the equitable remedy,

upon the principle that he who seeks equity must do equity.

SECTION VII.

The contract must be mutual.

Sections.

Mutuality of obligation and of remedy; general rule as to both and

170

Memorandum under statute of frauds............

Cases where objection to a want of mutuality is waived... .............. 171-174

SECTION VIII.

The contract must be fair, equal and just in its terms.

General doctrine...........................................................

First. Fairness in the contract itself..........

I. Time when the unfairness, etc., must exist...............

II. Incidents which aid in determining the fairness.......

III. Contracts which are unfair..........

Second. Extrinsic circumstances rendering the contract unfair....

SECTION IX.

175, 176

177-182
177, 178

............. 179

...... 180-182

183, 184

The remedy of specific performance must not be harsh or oppressive.

General doctrine........

Time to which the hardship must be referred.......

What are hardships; examples..........

185

186, 187

188-191

SECTION X.

Inadequacy of the consideration.

Inadequacy described.............

Inadequacy alone, when ground for a rescission..........

Inadequacy alone, when it will prevent a specific performance.............

192

.... 193

Inadequacy alone, time of.............

194

... 195

Inadequacy coupled with other facts............

196

Inadequacy in contract between parent and child, etc.........

Sections.

I. Cases of title too doubtful.............

Marketable title............

201-203

201

Where there is a difference of opinion between courts or judges, 202

Where the doubt must be settled by future litigation..............

II. Nature and extent of the doubt............................

Must be reasonable................

Where title is based upon presumptions..........

Particular instances of doubt..........

THIRD GROUP.

203

204-208

204

205

206-208

Incidents and features of the contract connected with or growing out of the

conduct-generally preliminary-of the parties which involve the validity

of the contract and may render it voidable, and which, therefore, as a

matter of strict right, affect the equitable remedy.

SECTION XII.

The contract must be free from misrepresentation.

General doctrine; effects of misrepresentation in law and in equity; elements

of a misrepresentation...........

I. Its form..........

II. Purpose for which it is made.........................

III. Its falsity..................................................

.....

209-211

212

213

....... 214

215-217

IV. Knowledge or belief of party making it...................

Different rule in law and in equity; no scienter necessary to

prevent a specific performance..............

........

V. Its effect on the party to whom made..........

216, 217

....... 218-226

He must be justified in relying on it...................... ....... 219-221

Must disaffirm at once on discovering the untruth.................. 222

His actual knowledge of the real facts, effect of................ 223, 224

Effect of a positive misrepresentation not obviated by any

general expressions of caution; sale "with all its defects".

When the contract has been assigned.........

General doctrine as to effect of mistake; how proved; kinds of............. 230. 231

First. What species of mistake are available as the occasion of equitable

relief, either defensive or affirmative..........

I. Must be of fact and not merely of law..........

Mistake of law, effect of......................................

II. Unexpected result of compromises, etc..........

232, 242

232

233-238

239

III. Mistake must be materia..................

IV. Intentional omission or act is not a mistake..........

Sections.

240

241

V. Subsequent parol change of a written contract...................

Second. Mistake, when set up by a defendant to defeat a specific performance;

and herein incidentally of rescission or reformation of the con-

tract..........

..........

242

243-258

I. Where the mistake is made by the defendant alone............ 243–245

1. Where defendant's mistake is induced by acts of the plaintiff. 244

2. Where the mistake is solely due to the defendant............... 245

II. Where defendant seeks to modify the terms of a written con-

tract on account of a mistake by one or both of the parties, 246-258

1. Where the written agreement fails to express the real con-

tract..............
.... 247-249

Reforming the written instrument in such case..... 248, 249

2. Mutual mistake as to subject-matter.........

3. Mutual misunderstanding of the contract......................

4. Mistake by the defendant alone..............

Election by plaintiff to have a specific performance according

to defendant's version; defendant's right to such a specific

performance.........

250

251

252

252, 253

Recapitulation; parol evidence, when admissible..............................................................
...... 254-258

Third. Where mistake is alleged by the plaintiff as a ground for reforming

his agreement, and enforcing its specific performance when thus

corrected

English rule.............

American doctrine...............

Modification of this doctrine.........

259-266

259, 260

261, 262

263-266

Defense of illegality, grounds of; proof of illegality......

286

Valid rights and interests may arise from illegal contracts.......

287

FOURTH GROUP.

Those incidents which relate to or are connected with the actual enforcement

of a decree, and which require that a specific performance should be

practicable.

SECTION XVI.

The contract must be such that its specific performance would not be

Agreement to submit to arbitration; agreement for a lease already forfeited

by lessee's breach of a condition, etc..........

SECTION XVII.

Incapacity of defendant to perform.

Nature of this incapacity......

First. Where defendant's incapacity is total.........................

Second. Where it is partial; alternative contracts....

291

292

293-297

298-302

SECTION XVIII.

Incapacity of the court to enforce a performance.

Nature of this incapacity.....

.....................

303

I. Where the court is unable to render a decree...........
304-306

II. Where the court is unable to enforce its decree................... 307-312

CHAPTER III.

ACTS OR OMISSIONS OF THE PARTIES, AND OTHER FACTS, DONE OR OCCUR-

RING SUBSEQUENTLY TO THE CONCLUSION OF THE CONTRACT, WHICH

AFFECT THE RIGHT TO A SPECIFIC PERFORMANCE.

Equitable estates and interests of the parties to a contract.................

SECTION I.

313-315

Events without the agency of the parties; failure of the subject-matter or of

the consideration.

When the estates and interests of the parties vest; when the contract is con-

cluded.................

.......

316-319

Destruction of the subject-matter, etc., before or after the vesting of the

estates........

320-322

SECTION II.

Performance by the plaintiff a condition precedent to his enforcing performance upon the defendant.

General doctrine.................

Sections. 323

First. Plaintiff's duty to comply with the provisions on his part............ 324-364
I. The general doctrine applicable to either party when plaintiff 324-338
Substantial performance generally requisite............
Impossibility of performance...

Exception in case of marriage contracts.......

Performance of future terms......................

324-326

327

328, 329

330-332

Performance of representations..........................

333

Performance of conditions in conditional contracts............. 334-338
II. Plaintiff's inablilty, when vendor, to give a good title or to convey

the subject-matter as specified in the contract.............. 339-353
General rule that plaintiff must make a good title, etc........ 339-342
Different estate from that contracted for............
Defect of vendor's title.............

Deficiency in the quantity of land......................................................

343-346

347-351

352, 353

III. Affirmative acts of plaintiff in violation of the contract........ 354-359
IV. Tender, when necessary..........

360-363 364

Kind of deed and title which plaintiff must give......................... Second. Some rules for interpreting usual provisions in contracts............ 365–369

SECTION III.

Time as affecting the right to a performance; when, and when not, of the

Effect of clause in a contract declaring it forfeited or void if not performed by a specified time.............

378-381

II. Time when essential..................

382-398

1. Where originally essential from the nature of the subject-matter,

or from the object of the contract...............................................

383-388

2. Where made essential by express stipulation...........

389-394

3. Where made essential by a subsequent notice given by one of the parties.........

395-398

III. Time, when material.........................................

399-426

Three modes of viewing time, viz., as immaterial, as essential and as material; each defined..........

1. Where the delay is caused solely by the acts or omissions of either party

403-420

2. Where the delay is caused by a defect in the vendor's title, or by a difficulty in perfecting the title......

421-426