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8953. Satisfaction defined

Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction.

§ 954. Part performance

Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation.

8961. Novation defined

Article E-Novation

Novation is the substitution of a new obligation for an existing one. § 962. Methods of novation

Novation is made by the substitution of:

(1) a new obligation between the same parties, with intent to extinguish the old obligation;

(2) a new debtor in place of the old one, with intent to release the latter; or

(3) a new creditor in place of the old one, with intent to transfer the rights of the latter to the former.

8963. Applicability of contract rules

Novation is made by contract, and is subject to all the rules concerning contracts in general.

§ 964. Rescission of novation

When the obligation of, or an order upon, a third person is accepted in satisfaction, the creditor may rescind the acceptance if:

(1) the debtor prevents the person from complying with the order or from fulfilling the obligation; or

(2) at the time the obligation or order is received, the person

is insolvent and this fact is unknown to the creditor; or

(3) before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent.

Article F-Release

§ 971. Extinction of obligation by release

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.

§ 972. Extent of general release

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.

§ 973. Release of joint debtor

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.

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1045. Duress.

1046. Menace.

1047. Kinds of fraud.

1048. Actual fraud.

1049. Constructive fraud.

1050. Actual fraud as question of fact.

1051. Undue influence.

1052. Kinds of mistake.

1053. Mistake of fact.

1054. Mistake of law.

1055. Mistake of foreign laws.

1056. Mutuality of consent.

1057. Communication of consent.

1058. Communication of acceptance of proposal.

1059. Completion of communication.

1060. Acceptance of proposal.

1061. Absolute or qualified acceptance.

1062. Time for revoking proposal.

1063. Method of revoking proposal.

1064. Ratification of voidable contract.

1065. Consent by acceptance of benefits.

1081. Object defined.

SUBCHAPTER IV-OBJECT

1082. Requisites of the object.

1083. Impossibility defined.

1084. Unlawful, impossible, or unascertainable object.

1085. One of several objects unlawful.

SUBCHAPTER V-CONSIDERATION

1101. Good consideration defined.

1102. Legal or moral obligation.

1103. Lawful consideration.

1104. Effect of illegal consideration.

1105. Executed or executory consideration.

1106. Executory consideration.

1107. Ascertainment of consideration.

1108. Impossibility of ascertaining consideration.

1109. Written instrument.

1110. Burden of proving want of consideration.

Subchapter I-Definitions

§ 1001. Contract defined

A contract is an agreement to do or not to do a certain thing.

§ 1002. Essential elements of contract

It is essential to the existence of a contract that there should be:

(1) parties capable of contracting;

(2) their consent;

(3) a lawful object; and

(4) a sufficient cause or consideration.

Subchapter II-Parties

§ 1021. Persons capable of contracting

All persons are capable of contracting, except minors and persons of unsound mind.

§ 1022. Capacity of minors and persons of unsound mind

Minors, and persons of unsound mind, have only such capacity as is defined by chapter 3 of this title.

§ 1023. Identification of parties necessary

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.

§ 1024. Contract for benefit of third person

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.

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A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by sections 1291 to 1294 of this title.

§ 1043. Causes defeating reality or freedom of consent

An apparent consent is not real or free when obtained through:

(1) duress;

(2) menace;

(3) fraud;

(4) undue influence; or

(5) mistake.

8 1044. When causes exist

Consent is deemed to have been obtained through one of the causes specified by section 1043 of this title only when it would not have been given had that cause not existed.

1045. Duress

Duress consists in:

(1) unlawful confinement of the person of the party, or of the spouse of the party, or of an ancestor, descendant, or adopted child of the party or spouse;

(2) unlawful detention of the property of such a person; or (3) confinement of such a person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.

§ 1046. Menace

Menace consists in a threat of:

(1) any duress specified by paragraphs (1) and (3) of section 1045 of this title;

(2) unlawful and violent injury to the person or property of any person specified by section 1045 of this title; or

(3) injury to the character of such a person.

§ 1047. Kinds of fraud

Fraud is either actual or constructive.

§ 1048. Actual fraud

Actual fraud, within the meaning of this subchapter, 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.

§ 1049. Constructive fraud

Constructive fraud consists in:

(1) 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) any act or omission which the law specially declares to be fraudulent, without respect to actual fraud.

8 1050. Actual fraud as question of fact Actual fraud is always a question of fact.

§ 1051. Undue influence

Undue influence consists in:

(1) the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of the confidence or authority for the purpose of obtaining an unfair advantage over him;

or

(2) taking an unfair advantage of another's weakness of mind;

(3) taking a grossly oppressive and unfair advantage of another's necessities or distress.

§ 1052. Kinds of mistake

Mistake may be either of fact or law.

§ 1053. Mistake of fact

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 past or 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.

§ 1054. Mistake of law

Mistake of law is a mistake, within the meaning of this subchapter, only when it arises from a misapprehension of the law:

(1) by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or

(2) by one party, of which the others are aware at the time of contracting, but which they do not rectify.

§ 1055. Mistake of foreign laws

Mistake of foreign laws is a mistake of fact.

§ 1056. Mutuality of consent

Consent is not mutual unless the parties all agree upon the same thing in the same sense; but in certain cases defined by chapter 35 of this title, relating to the interpretation of contracts, they are to be deemed so to agree without regard to the fact.

§ 1057. Communication of consent

Consent may 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 communication.

§ 1058. Communication of acceptance of proposal

If a proposal prescribes 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 mode may be adopted.

§ 1059. Completion of communication

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 section 1058 of this title.

81060. Acceptance of proposal

Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.

§ 1061. Absolute or qualified acceptance

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.

§ 1062. Time for revoking proposal

A proposal may be revoked at any time before its acceptance is communícated to the proposer, but not afterwards.

§ 1063. Method of revoking proposal

A proposal is revoked by:

(1) communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 1057-1059 of this title, before his acceptance has been communicated to the former;

(2) the lapse of the time prescribed in the proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance;

(3) the failure of the acceptor to fulfill a condition precedent to acceptance; or

(4) the death or insanity of the proposer.

§ 1064. Ratification of voidable contract

A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent.

§ 1065. Consent by acceptance of benefits

A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, as far as the facts are known, or ought to be known, to the person accepting.

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