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3. If his assent was obtained by the misrepresentation, conceal

ircumventio or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled; or,

4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced.

3392. Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case snecific performance may be compelled, upon full compensation being made for the default.

3394. An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt.

3395. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation.

ARTICLE IV.
Revision of Contracts.

Section

Section 3399. When contract may be re- 3401. Principles of revision. vised.

3402. Enforcement revised con3400. Presumption, intent of

tract. parties.

3399. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.

3400. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement.

3401. In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be.

3402. A contract may be first revised and then specifically enforced.

ARTICLE V.

Rescission of Contracts. Section

Section 3406. When rescission may be 3408. Rescinding party to do adjudged.

equity. 3407. Rescission for mistake.

3406. The rescission of a written contract may be adjudged, on the application of a party aggrieved:

1. In any of the cases mentioned in section sixteen hundred and eighty-nine; or,

2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or,

3. When the public interest will be prejudiced by permitting it to stand.

3407. Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.

3408. On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any pensation to the other which justice may require.

ARTICLE VI.

Cancellation of Instruments. Section

Section 3412. Cancellation, when ordered. 3414. Cancellation in part. 3413. Instrument obviously void. 3415. Reissuance of documents.

3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.

3413. An instrument, the invalidity of which is apparent upon its face; or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section.

3414. Where an instrument is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue.

3415. An action may be maintained by any person interested in any private document or instrument in writing, which has been lost, destroyed or damaged by conflagration or other public calamity, to prove, establish, compel the reissuance, reexecution and reacknowledgment of such document or instrument. If such document or instrument be a negotiable instrument, the court must compel the person in whose favor it is drawn to give a bond executed by himself and two sufficient sureties to indemnify the person reissuing, re-executing, or reacknowledging the same against any lawful claim thereon. 1906–86.

CHAPTER III.

Preventive Relief. Section

Section 3420. Preventive relief how grant. 3422. Injunction, when allowed. ed.

3423. Injunction, when not allow3421. Provisional injunctions.

ed. 3420. Preventive relief is granted by injunction, provisional or final.

3421. Provisional injunctions are regulated by the Code of Civil Procedure.

3422. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant:

1. Where pecuniary compensation would not afford adequate relief;

2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;

3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or,

4. Where the obligation arises from a trust. 3423. An injunction can not be granted:

First. To stay a judicial proceeding pending at the commence- . ment of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.

Second. To stay proceedings in a court of the United States.

Third. To stay proceedings in another state upon a judgment of a court of that state.

Fourth. To prevent the execution of a public statute, by officers of the law, for the public benefit.

Fifth. To prevent the breach of a contract, other than a contract in writing for the rendition or furnishing of personal service from

e to another where the minimum compensation for such service is at the rate of not less than six thousand dollars per annum and where the promised service is of a special, unique, unusual, extraordinary or intellectual character which gives it peculiar value the loss of which can not be reasonably or adequately compensated in damages in an action at law, the performance of which would not be specifically enforced.

Sixth. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession.

Seventh. To prevent a legislative act by a municipal corporation. 1919–328.

PART II.

SPECIAL RELATIONS OF DEBTOR AND CREDITOR.
TITLE I. GENERAL PRINCIPLES.

II. FRAUDULENT INSTRUMENTS AND TRANSFERS.
III. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.

TITLE I.

General Principles. Section

Section 3429. Who is a debtor.

3432. Payments in preference. 3430. Who is a creditor.

3433. Relative rights, different 3431. Contracts of debtor valid.

creditors.

3429. A debtor, within the meaning of this title, is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent.

3430. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money.

3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract.

3432. A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another.

3433. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons.

TITLE II.

Fraudulent Instruments and Transfers.

Section

Section 3439. Transfers, etc., defraud 3441. Creditor's rights judicially creditors.

determined. 3440. Certain transfers presumed 3442. Question of fraud, how defraudulent.

termined.

3439. Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in in

terest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor.

3440. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a co tract of bottomry or respondentia, is conclusively presumed if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer; provided, however, that the provisions of this section shall not apply to the transfers of wines in the wineries or wine cellars of the makers or owners thereof, or other persons having possession, care, and control of the same, and the pipes, casks, and tanks in which the said wines are contained, which transfers shall be made in writing, and certified and verified in the same form as provided for chattel mortgages, and which shall be recorded in the book of miscellaneous records in the office of the county recorder of the county in which the same are situated; provided, also, that the sale, transfer or assignment of a stock in trade, in bulk, or a substantial part thereof otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor, transferrer, or assignor, and the sale, transfer, assignment or mortgage of the fixtures or store equipment of a merchant, will be conclusively presumed to be fraudulent and void as against the existing creditors of the vendor, transferrer, assignor or mortgagor. unless at least seven days before the consummation of such sale, transfer, assignment or mortgage the vendor, transferrer, assignor or mortgagor, or the intended vendee, trausferee, assignee, or mortgagee, shall record in the office of the county recorder in the county or counties in which the said stock in trade, fixtures or equipment are situated a notice of said intended sale, transfer, assignment or mortgage, stating the name and address of the intended vendor, transferrer, assignor or mortgagor, and the name and address of the intended vendee, transferee, assignee or mortgagee, and a general statement of the character of the merchandise or property intended to be sold, assigned, transferred or mortgaged, and the date when and the place where the purchase price or consideration, if any there be, is to be paid; provided, nevertheless, that if such intended sale is to be at public auction the notice above required to be recorded shall state that fact, the time, terms, and place of said sale, the names and addresses of the vendor and auctioneer, and a general statement of the character of the merchandise or property intended to be sold; but such sale shall in no event occur within seven days of the date of recordation of said notice; and any auctioneer selling said stock in trade or fixtures and store equipment of a merchant shall be personally liable for all damages incurred by any creditor of said merchant in the event said notice is not recorded as aforesaid; provided, further, that the provisions of this section shall not apply or extend to any sale, transfer, assignment or mortgage made under the di tion or order of a court of competent jurisdiction or by any executor, administrator, guardian, receiver, or other officer or person acting in the regular and proper discharge of official duty, or in the discharge of any trust imposed upon him by law, nor to any transfer or assignment, statutory or otherwise, made for the benefit of creditors generally, nor to any sale, transfer, assignment or mortgage of any property exempt from execution. 1923.

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