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such acceptance if the debtor prevents such person from complying with the order, or from fulfilling the obligation; or if, at the time the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor, or if, before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. 1873—241.
Section 1541. Obligation extinguished by 1543. Of one of several joint release.
debtors. 1542. Certain claims unaffected
by general release. 1541. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration.
1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 1873—241.
1543. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him.
II. MANNER OF CREATING CONTRACTS.
Nature of a Contract.
1549. Contract, what.
1549. A contract is an agreement to do or not to do a certain thing.
1550. It is essential to the existence of a contract that there should be:
1. Parties capable of contracting;
1556. Who may contract.
1558. Identification parties.
1556. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.
1557. Minors and persons of unsound mind, have only such capacity as is defined by part one of division one of this code.
1558. 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.
1559. 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.
Section 1565. Essentials of consent. 1580. Mutuality of consent. 1566. Consent, when voidable. 1581. Communication of consent. 1567. Consent, when not free. 1582. Mode of communicating ac1568. Consent by fraud.
ceptance. 1569. Duress.
1583. When communications com1570. Menace.
plete. 1571. Fraud, actual, constructive. 1584. Acceptance, performed con1572. Actual fraud.
ditions. 1573. Constructive fraud.
1585. Acceptance must be abso1574. Actual fraud, question of lute. fact.
1586. Revocation of proposal. 1575. Undue influence.
1587. Revocation, how made. 1576. Mistake.
1588. Ratification, void contract. 1577. Mistake of fact.
1589. Assumption of obligation 1578. Mistake of law.
by acceptance benefits. 1579. Mistake of foreign laws.
1565. The consent of the parties to a contract must be:
1566. A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the chapter on rescission.
1567. An apparent consent is not real or free when obtained through:
1568. 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.
1569. 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,
3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.
1570. Menace consists in a threat :
1. Of such duress as is specified in subdivisions one and three 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. . 1571. Fraud is either actual or constructive.
1572. 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. 1573. 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.
1574. Actual fraud is always a question of fact.
1575. 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.
1576. Mistake may be either of fact or law.
1577. 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 pastor 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.
1578. 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 part, of which the others are aware at the time of contracting, but which they do not rectify.
1579. Mistake of foreign laws is a mistake of fact.
1580. 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.
1581. 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.
1582. 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 made may be adopted.”
1583. Consent 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.
1584. Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.
1585. 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.
1586. A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards.
1587. 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 fifteen hundred and eight-one and fifteen hundred and eighty-three, 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.
1588. A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent.