페이지 이미지
PDF
ePub

1654. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private party, in which it is presumed that all uncertainty was caused by the private party.

1655. Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention.

1656. All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded.

1657. If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly—as, for example, if it consists in the payment of money only-it must be performed immediately upon the thing to be done being exactly ascertained.

1659. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several.

1660. A promise, made in the singular number, but executed by several persons, is presumed to be joint and several. .

1661. An executed contract is one, the object of which is fully performed. All others are executory.

TITLE IV.

Unlawful Contracts. Section

Section 1667. What is unlawful.

1674. Exception, sale good will. 1668. Certain contracts unlawful. 1675. Exception, partnership 1670. Contracts fixing damages.

agreement. 1671. Exception.

1676. Restraint of marriage void. 1673. Contracts, restraint of

trade. 1667. That is not lawful which is: 1. Contrary to an express provision of law;

2. Contrary to the policy of express law, though not expressly prohibited; or,

3. Otherwise contrary to good morals.

1668. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

1670. Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.

1671. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

1673. Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void.

1674. One who sells the good-will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good-will from him, carries on a like business therein.

1675. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof.

1676. Every contract in restraint of the marriage of any person, other than a minor, is void.

TITLE V.

Extinction of Contracts. Chapter I. Contracts, how Extinguished.

· II. Rescission.

III. Alteration and Cancellation.

CHAPTER I.
Contracts, How Extinguished.

Section

1682. Contracts, how extinguished.

1682. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title.

CHAPTER II.

Rescission.

Section

Section 1688. Rescission extinguishes 1690. Stipulations, when do not contract.

defeat. 1689. When may rescind.

1691. Rescission, how effected. 1688. A contract is extinguished by its rescission.

1689. A party to a contract may rescind the same in the following cases only:

1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through

duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party;

2. If, through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part;

3. If such consideration becomes entirely void from any cause;

4. If such consideration, before it is rendered to him, fails in a material respect, form any cause; or,

5. By consent of all the other parties.

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.

CHAPTER III.

Alteration and Cancellation.

Section

Section 1697. Alteration, verbal contract. 1700. Extinction, unauthorized 1698. Written contract.

alteration. 1699. Extinction, cancellation. 1701. Alteration, 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. 1873–242.

1698. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise, 1873—243.

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.

PART III.

OBLIGATIONS IMPOSED BY LAW. Section

Section 1708. Abstinence from jury. 1712. Restoration, wrongfully ac1709. Fraudulent deceit.

quired. 1710. Deceit, what.

1713. Necessary demand, when. 1711. Deceit, public, etc.

1714. Responsibility, negligence. 1715. Other obligations.

1708. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights.

1709. One who willfully 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 perfarming it.

1711. One who practices 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 actually 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 willful 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, willfully 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.

1715. Other obligations are prescribed by divisions one and two of this code.

PART IV.

OBLIGATIONS ARISING FROM PARTICULAR TRANSACTIONS.
TITLEI. SALE.

II. EXCHANGE. .
III. DEPOSIT.
IV. LOAN.

V. HIRING.
VI. SERVICE.
VII. CARRIAGE.
VIII. TRUST.
IX. AGENCY.
X. PARTNERSHIP.
XI. INSURANCE.
XII. INDEMNITY.
XIII. GUARANTY.
XIV. LIEN.

XV. NEGOTIABLE INSTRUMENTS.
XVI. GENERAL PROVISIONS.

[merged small][ocr errors]

Sale.
Chapter I. General Provisions..

II. Rights and Obligations of the Seller.
III. Rights and Obligations of the Buyer.
IV. Sale by Auction.

CHAPTER I.

General Provisions.
Article 1. Sale.

II. Agreements for Sale.
III. Form of the Contract.

ARTICLE I.

Sale.

Section

1721. Sale, what.

Section

1722. Subject of sale.

1721. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property.

1722. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer.

« 이전계속 »