1514. If performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance.

1515. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it.

√1521.

1521. An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. 1873-240.

1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. 1523. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction.

1524. 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. 1873-241.

1530. Novation is the substitution of a new obligation for an existing one.

1531. Novation is made:

1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation;

2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or,

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

1532. Novation is made by contract, and is subject to all the rules concerning contracts in general.

1533. When the obligation of a third person, or an order upon such person is accepted in satisfaction, the creditor may rescind

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.

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.

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;

2. Their consent;

3. A lawful object; and,

4. A sufficient cause or consideration.

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.

1571. Fraud, actual, constructive. 1584. Acceptance, performed con1572. Actual fraud.

1573. Constructive fraud.

1574. Actual fraud, question of

fact.

1575. Undue influence.

1576. Mistake.

1577. Mistake of fact.

1578. Mistake of law.

1579. Mistake of foreign laws.

ditions.

1585. Acceptance must be abso

lute.

1586. Revocation of proposal.

1587. Revocation, how made. 1588. Ratification, void contract. 1589. Assumption of obligation by acceptance benefits.

1565. The consent of the parties to a contract must be:

1. Free;

2. Mutual; and,

3. Communicated by each to the other.

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:

1. Duress;

2. Menace;

3. Fraud;

4. Undue influence; or,

5. Mistake.

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;

or,

2. In taking an unfair advantage of another's weakness of mind;

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 past or present, material to the contract; or,