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PART II.

CONTRACTS.

TITLE I. NATURE OF A CONTRACT.

II. MANNER OF CREATING CONTRACTS.
III. INTERPRETATION OF CONTRACTS.

IV. UNLAWFUL CONTRACTS.

V. EXTINCTION OF CONTRACTS.

TITLE I.

NATURE OF A CONTRACT.

CHAPTER I. DEFINITION.

II. PARTIES.

III. CONSENT.

IV. OBJECT.

V. CONSIDERATION.

CHAPTER 1.

DEFINITION.

SECTION 15 49. Contract, what.

1550. Essential elements of contract.

what.

SEC. 1549. A contract is an agreement to do or not to Contract, do a certain thing.

N. Y. C. C., Sec. 744.

SEC. 1550. It is essential to the existence of a con- Essential tract that there should be

1. Parties capable of contracting.

2. Their consent.

3. A lawful object; and,

4. A sufficient cause or consideration.

elements of contract.

The word "object" has been selected, after much refleetion, as a more correct word, for the purpose here intended, than "subject" or "subject matter."

N. Y. C. C., Sec. 745.

Who may contract.

Minors, etc.

Identifica

tion of parties neces.

sary.

When contract for

benefit of third person may be en

forced.

CHAPTER II.

PARTIES.

SECTION 1556. Who may contract.

1557. Minors, etc.

1558. Identification of parties necessary.

1559. When contract for benefit of third person may be enforced.

SEC. 1556. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.

SEC. 1557.

The disabilities of married women are entirely removed by Sec. 79.

N. Y. C. C., Sec. 746.

NOTE.-See Sec. 158 of this Code.

Minors, and persons of unsound mind, have only such capacity as is defined by Part I of Div. First of this Code.

N. Y. C. C., Sec. 747.

SEC. 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.

SEC. 1559

N. Y. C. C., Sec. 748.

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.

N. Y. C. C., Sec. 749.

CHAPTER III.

CONSENT.

SECTION 1565. Essentials of consent.

1566. Consent, when voidable.

1567. Apparent consent, when not free.

1568. When deemed to have been obtained by fraud, etc.

1569. Duress, what.

1570. Menace, what.

SECTION 1571. Fraud, actual or constructive.

1572. Actual fraud, what.

1573. Constructive fraud.

1574. Actual fraud a question of fact.

1575. Undue influence, what.

1576. Mistake, what.

1577. Mistake of fact.

1578. Mistake of law.

1579. Mistake of foreign laws.

1580. Mutuality of consent.

1581. Communication of consent.

1582. Mode of communicating acceptance of proposal.
1583. When communication deemed complete.

1584. Acceptance by performance of conditions.

1585. Acceptance must be absolute.

1586. Revocation of proposal.

1587. Revocation, how made.

1588. Ratification of contract, void for want of consent.

1589. Assumption of obligation by acceptance of benefits.

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

1. Free.

2. Mutual; and,

3. Communicated by each to the other.

N. Y. C. C., Sec. 750.

of consent.

when void

able.

SEC. 1566. A consent which is not free is nevertheless Consent, not absolutely void, but may be rescinded by the parties, in the manner prescribed by the chapter on Rescission.

N. Y. C. C., Sec. 751.

SEC. 1567. An apparent consent is not real or free Apparent when obtained through

consent, when not free.

1. Duress.

2. Menace.

3. Fraud.

4. Undue influence; or,

5 Mistake.

Menace has usually been classed with duress, and will be
found to be treated under that head in the digests. It is,
however, clearly a separate branch of the subject. Accident
and surprise are included under the head of "Mistake."
N. Y. C. C., Sec. 752.

SEC. 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.

N. Y. C. C., Sec. 753.

When deembeen ob

ed to have

tained by

fraud, etc.

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SEC. 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 per

son; or,

3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harrassing or oppressive.

N. Y. C. C., Sec. 754.

SEC. 1570. Menace consists in a threat

1. Of such duress as is specified in Subds. 1 and 3 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.

This [last] species of threat is not usually included in the definition of duress, and was doubtless not so treated under the old common law, when a libeller could be made to rot in jail until he paid damages, while neither the judgment creditor nor any one else was bound to find him food or drink (Dive vs. Maningham, 1 Plowd., 68); and when some debtors did actually starve to death. With such a savage remedy for the recovery of pecuniary damages, they might be considered an adequate satisfaction for injuries to property or character, and it was on this ground that such injuries were not regarded as duress (Bac. Abr., Duress, A). The remedy now existing is less effective, even if money were considered equivalent to character. By statute, it is now a criminal offence to send threatening letters for the purpose of extorting money, and that which is thus treated as a crime ought not to be allowed to sustain a contract. These views are further sustained by Story Cont., Sec. 398; 2 Stark. Ev., 482; Chitt. Cont., 208. And see Eadie vs. Slimmon, 26 N. Y., 9, in which some weight is given to the influence of a threat involving the loss of a husband's char

acter.

N. Y. C. C., Sec. 755.

SEC. 1571. Fraud is either actual or constructive.
N. Y. C. C., Sec. 756.

SEC 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.

SEC. 1573.

N. Y. C. C., Sec. 757.

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 t› be fraudulent, without respect to actual fraud.

N. Y. C. C., Sec. 758.

SEC. 1574. Actual fraud is always a question of fact.

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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.

Note to Subd. 1.-It may safely be stated as a general rule of equity, that no one can be permitted to make any selfish use of a personal confidence reposed in him. This rule is illustrated in a variety of forms, and sustained by numerous authorities, in the Title on Trusts. But it is also proper to be recognized in this place. It is not necessary, in such cases, to show that there was any deception practised. It is sufficient to show that the confidence reposed was taken advantage of for purposes of gain (see Sears vs. Shafer, 6 N. Y., 268, 272; Bergen vs. Udall, 31 Barb., 9; Brock vs. Barnes, 40 Barb., 521; Baker vs. Bradley, 7 De G., M. & G., 597; Tyrrell vs. Bank of London, 10 H. of L. Cas., 26; Dent vs. Bennett, 4 Myl. & Cr., 269; 7 Sim., 539; Broun vs. Kennedy, 9 Jur. [N. S.], 1163; Davies vs. Davies, id., 1002.)

A parent may not acquire anything from his child by the slightest exercise of parental authority (Bury vs. Op

Constructive fraud.

Actual fraud
a question
of fact.

Undue influ

ence, what.

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