A Treatise on the Rescission of Contracts and Cancellation of Written Instruments, Том 1

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Vernon law book Company, 1916 - 1779 страница

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Rescission as the Converse of Specific Performance
12
Parol Rescission of Written Contract
13
Grounds Required to Support Unilateral Rescission
14
Statutory Grounds for Rescission 16 Same California Montana Oklahoma North Dakota South Dakota
23
Substitution of One Instrument for Another
28
Same Georgia
29
Conspiracy Bribery and Perjury
30
Same Alabama 19 Same Louisiana
31
Frauds by Agents and Other Third Persons
32
Agent Wrongly Exceeding Authority
33
Collusion with Agent of Other Party
34
CHAPTER II
36
Definitions of Fraud 22 Same Constructive Fraud
44
Same Breach of Warranty Distinguished 24 Essential Elements of Actionable Fraud
46
Same Husband and Wife
47
Same Executors or Administrators and Beneficiaries
48
Same Physicians and Patients
49
Forged Instruments or Signatures
50
Same Directors and Stockholders of Corporations Signing Instrument Without Reading
51
Same Rule for Illiterate Persons and Foreigners
53
Same Defective Eyesight Excusing Failure to Read
54
Fraudulent Alteration of Instruments and Additions Thereto 27 Fraud in Obtaining Possession of Deed
55
Same Misrepresenting Purport or Contents of Instrument
56
Misreading Instrument
57
Fraudulent Concealment of Material Facts
58
Same Circumstances Imposing Duty to Disclose
59
Same When Silence is Justifiable
60
Caveat Emptor
61
Concealment Coupled with Efforts to Prevent Discovery
62
Concealment Coupled with False Representations
63
Concealment of Latent Defects
64
Acquiescence in SelfDeception of Other Party
65
Concealment by Purchaser of Property
66
Same Concealment Accompanied by Fraud or Falsehood 52 CHAPTER III
67
False Representations as Ground of Rescission in General
68
Nature of Misrepresentations Justifying Rescission
69
Materiality of Representations
70
Same Law of Another State
72
Representations Not Contemporary with Making of Con tract
73
Waiver as to Representations Not Embodied in Contract
74
Representations Made Ultra Vires
75
Expressions of Opinion
76
Same Examination of Public Records
116
Same Constructive Notice and Facts Suggesting Inquiry
117
Circumstances Excusing Failure to Investigate
118
Effect of Fiduciary Relations Between the Parties
119
Tests for Distinguishing Expressions of Opinion from Rep resentations of Fact 78 False Opinion Fraudulently Asserted 79 Representations as to Value...
159
One Party Possessing Special Expert or Technical Knowl
160
BLACK RESC
177
Representations as to Matters of
178
Representations as to Financial Ability
257
Representations as to Financial Standing of Third Persons
261
Falsity of Representations
266
Ambiguous and Misleading Statements
269
Knowledge of Falsity of Representations
273
Effect of Restoration to Reason
274
Same Ratification of Contract
275
Restitution or Restoration of Consideration
276
Same Falsity in Express or implied Assertion of Knowl edge
277
Degree or Measure of Intoxication
278
Intoxication Voluntary or Induced by Other Party
279
Habitual Drunkenness
280
Voidability of Contract Ratification or Disaffirmance
281
Same Imputed or Constructive Knowledge of Falsity
282
Same Statements Made Recklessly Without Knowledge of Falsity
285
Same Good Faith and Honest Belief in Statements Made 107 Same Reasonable Ground to Believe Statements True
292
Intention to Deceive or Mislead
296
Effect of Representations in Actually Deceiving Party
298
Reliance Upon Representations
300
Representations as Inducement to Contract
306
Necessity of Actual Loss or Injury
309
Duty to Investigate Truth of Representations
317
Contracts Violative of Statutes
318
Monopolies and Restraints of Trade
319
Ultra Vires Contracts
320
Compounding Crime or Stifling Prosecution
321
Same Decisions Repudiating or Modifying Rule
322
Fraudulent Transfers and Schemes to Defraud
323
Contracts Violating Sunday Laws
324
Usurious Contracts
325
Same Extent of Investigation Necessary
326
Bankruptcy as Anticipatory Breach of Contract
327
Executory and Option Contracts of Sale
328
Conditional Sales
329
Relation of Landlord and Tenant
330
Election as to Rescission
331
Executed and Executory Contracts
332
Contracts with Government or Municipal Corporations
333
Maritime Contracts
334
Contracts of Brokerage and Agency
335
Same Agency for Definite Time
336
Same Revocation by Operation of Law or for Cause
337
Same Notice of Revocation of Agency
338
Same Reimbursement or Compensation of Agent
339
Same Repudiation or Rescission by Agent
340
Same Agency or Power Coupled with an Interest
341
Party Relying on His Own Investigation
342
Partnerships
343
Contract or Engagement to Marry
344
Marriage as Executed Contract
345
Investigation Prevented or Thwarted by Other Party
346
Same Rescission for Fraud or False Representations
347
Same Representations by Officers Agents and Promoters
348
Same False Statements in Prospectus
349
Degree of Care and Vigilance Required
350
Rejection of Rule Requiring Ordinary Prudence and Care
351
Same Effect of Bankruptcy or Insolvency of Company
352
Relative Situation of Parties as to Mental and Business Capacity
353
Contracts for Work or Hire of Services
354
Tenure of Office Public and Private
355
Resolutions and Contracts of Directors of Corporations
356
Contract or Notice of Rescission may be Rescinded
357
TRUSTS SETTLEMENTS AND ANTENUPTIAL AGREEMENTS 358 Revocability of Trusts and Settlements in General
358
CHAPTER IV
359
Effect of Mistake
360
Fraud Deception and Undue Influence
361
Want of Independent Advice
362
Deed of Trust Testamentary in Character
363
Trusts in Bank Deposits
364
Other Party
365
Resignation or Repudiation by Trustee
366
Termination of Trust by Failure of Beneficiaries
367
Antenuptial Agreements
368
Mistake Attributable to partys Own Negligence or Inatten tion
369
License Granted Upon Consideration
370
Licensee Expending Money and Labor
371
Mistake of Both Parties
372
Mutual Ignorance of Material Facts
373
License for Permanent Structures or Improvements
374
Materiality of Mistake
375
License for Right of
376
Mistakes of Agents
377
Mistake in Transmission of Telegram
378
Compensation to Licensee on Revocation
379
Mistakes of Draftsmen
380
Mistake as to Identity of Party
381
Right of Rescission in General
382
Mistake as to Existence of SubjectMatter
383
Want of Care and Prudence on Part of Releasor
384
Mistake as to Identity of SubjectMatter
385
Representations as to Existence of Cause of Action
386
Promises and Representations as to Future Events
387
Mistake as to Price or Value of SubjectMatter
388
Errors in Computations or Estimates
389
Same Reliance on Opinion of Physician
390
Same Mistake as to Nature or Extent of Injuries
391
Mistakes as to Title 144 Mistake as to Quantity of Land Conveyed
392
Inadvertence
393
Settlements Between Trustees and Beneficiaries
394
Remedy Against Fraud at Law and in Equity
395
Restoration or Tender of Consideration Received
396
Ratification and Estoppel
397
Right of Rescission or Cancellation in General
398
Mistaken Expectation as to Future Events
399
Substitution of Instruments
400
Duty of Care and Prudence
401
Mistake
402
Duress and Undue Influence
403
Mistake in Matter of
404
Same Mistake or Ignorance as to Partys Legal Rights
405
Same Mistake as to Legal Effect of Instrument
407
Same Mistake of Law Induced by Other Party
410
Same Mistake of Law as Element of Fraud
412
Same Mutual Mistake of
413
Same Laws of Foreign State or Country
414
Loss or Injury Resulting from Mistake
415
Evidence to Prove Mistake
416
Accident or Surprise as Ground for Reliet
417
Right to Rescind in General
418
CHAPTER V
419
Same As to Title Interest or Estate
420
Misrepresentation or Concealment of Incumbrances
421
Same Existence of Prior Contract to Convey
422
Failure of Consideration
423
Same As to Value of Property
424
Partial Failure of Consideration
425
Same As to Timber and Mineral Resources
426
Failure of Consideration from Impossibility of Performance
427
Application of Rule of Caveat Emptor
428
Certainty and Materiality of Defect
429
Offer of Doubtful Title
430
Allowance of Reasonable Time to Make Title
431
Vendor Disabling Himself to Convey
432
Failure of Consideration Resulting from Operation of Law or from Change in the Law 162 Instrument Becoming Functus Officio by Performance of ...
433
Defects Cured After Notice of Rescission but Before Decree
434
Disturbance of Purchaser or Danger of Eviction
435
Failure of Title as to Part of Land Conveyed
436
Grounds for Equitable Relief
437
Waiver Estoppel or Default of Purchaser
438
Rescission by Vendor for NonPayment of Purchase Money
439
Same Deferred and Installment Payments
440
Rights and Duties of Parties on Rescission
441
Exchange of Properties
442
vi
443
Rescission or Modification by Agreement of Parties 407 Rescission for Cause 408 Fraud and Misrepresentations
444
Application of Rule of Caveat Emptor
445
Fraud and False Representations
446
Announcements or Representations by Persons Conducting
447
Chilling Bids or Stifling Competition
448
Unfair Combinations Among Bidders
449
Employment of Puffers
450
Irregularities Errors and Defects
452
Inadequacy of Price
453
Remedies Before and After Confirmation of Sale
454
Laches and Estoppel
455
Rescission by Agreement or Consent
456
Grounds for Rescission in General
457
False Representations or Concealment
458
Premises Untenantable or Unfit for
459
Destruction or Deterioration of Premises
460
Impossibility of Performance
461
Louisiana Law Lesion Beyond Moiety
462
Mistake
463
Breaches of Contract by Landlord
464
Breaches of Contract by Tenant
465
CHAPTER VII
466
Sale of Mines or Mining Property
467
Mining Leases
468
Same NonExistence or Exhaustion of Minerals
469
Sales by Sample
470
Delay Failure to Operate or Abandonment by Lessee
471
Remedy at Law or in Equity
472
Notice for Cancellation
481
Same Sellers Fraud or Knowledge of Unsoundness 187 Same Agreement for Return if Defective 188 Same Warranty Against Future Defect or Failure
482
Repayment of Unearned Premium on Cancellation
483
Sale by Producer or Manufacturer of Article
484
Property Purchased for Specified
485
Validity of Cancellation
486
Ratification of Invalid Cancellation
487
Same Warranty of Fitness for Prescribed
488
Sale with Privilege of Return if Not Satisfied
489
Remedies for Wrongful Cancellation
490
Surrender of Policy by Insured
491
Mistake
492
Validity of Surrender
493
Operation and Effect of Surrender
494
Repayment or Recovery on Surrender
495
Abandonment by Insured
496
Essentials of Valid Gift
497
Allowance for Tare Tret Leakage etc 194 Offer or Opportunity to Make Good Defect
498
Same Reservation of Profits or Income
499
Revocability in General
500
Same Breach of Conditions
501
Acceptance and Use of Defective Article
502
Same Ingratitude of Donee
503
CHAPTER VIII
504
Gift to Fiduciary or Trustee
505
Gifts Between Parent and Child
506
Deposit of Money in Bank to Credit of Another
507
Revocation by Mutual Consent
508
Gifts Causa Mortis
509
Same Survival of Donor and Revocation
510
Burden of Proof and Evidence
511
Validity and Effect of Reservation
512
Mode of Rescission Under Reserved Right
513
Notice of Rescission
514
Stipulation Limiting Time for Rescission or Return
515
Mutual or Unilateral Right of Rescission
516
Contingencies Giving Right to Rescind
517
Building and Construction Contracts
518
Agreement to Take Back Unsold Goods
519
Rescission for Unsatisfactory Performance
520
Parol Rescission of Written Contract
524
Consent of Parties
525
Implied Consent or Acquiescence
526
Assent or Acquiescence Inferred from Unexplained Delay
527
Acts and Conduct Constituting Rescission
528
Same Offer and Acceptance
529
Same Substitution of New Contract
530
Same Resuming Possession of Goods Sold
531
Same Abandonment of Rights
532
Same Default or Nonperformance on Both Sides
533
Evidence of Rescission
534
Consequences and Effects of Rescission
535
Reasonable Promptness Required
536
Rule as to Persons Under Disabilities
537
Inability to Perform
538
Insolvency of Purchaser
539
Same Diligence Required in Inspection or Examination
540
What Constitutes Laches
541
Same Sales of Personal Property
542
Impossibility of Performance
543
Circumstances Explaining or Excusing Delay
544
Change in Circumstances or in Value of Property
545
Absence of Loss or Prejudice from Delay
546
Same Destruction or Perishing of SubjectMatter 210 Effect of Partys Disabling Himself to Perform
547
Premature Attempt to Rescind
548
Sale of SubjectMatter to Third Party
549
Creditors
550
Heirs and Representatives
551
Parties Jointly Interested
552
Breach of Covenant or Condition in General
553
Parties in Pari Delicto
555
Same Defrauding Creditors
556
Same Inequality of Turpitude
557
CONDITIONS PRECEDENT AND ACTS CONSTITUTING RE SCISSION 558 Existence of Sufficient Grounds for Rescission
558
Selecting Ground for Rescission Motives Immaterial
559
Necessity of Assent or Acquiescence
560
Election to Rescind or Affirm
561
Election of Other Remedy
562
Election Once Made is Final
563
Same Conditions Subsequent Promise of Future Action 214 NonPayment of Consideration
564
Payment or Delivery in Installments
565
Necessity of Tender Where Vendor Unable to Make Title
566
Actual or Threatened Loss or Injury as Condition Precedent
567
Demand for Performance Putting Party in Default
568
Notice of Rescission
569
Same Effect of Previous Defaults or Forbearance
570
Failure of Punctual Performance Time of the Essence
571
Notice Stipulated for in Contract
572
Form and Sufficiency of Notice
573
Same Failure to Deliver or Perform at Time Stipulated
574
Service or Delivery of Notice
575
Institution of Suit as Equivalent to Notice
576
Acts Constituting or Evidencing Rescission
577
Same Suit to Rescind or to Recover Property
578
Same Regaining or Accepting Possession of Property
579
Same Unreasonable Delay in Delivery or Performance 219 Same Waiver or Extension of Time
580
Same Penalty Fixed for Delay
581
Same Refusal to Perform Demands Inconsistent with
582
CHAPTER IX
583
General Rule 584 Separation of Beneficial and Onerous Portions of Contract
584
Separable or Divisible Contracts
585
Delivery or Performance in Installments
586
Part of Property Sold by Purchaser
587
Option for or Acceptance of Partial Rescission
588
Power to Decree Partial Rescission
589
Waiver of Right to Rescind
590
Knowledge of Rights Essential to Valid Waiver
591
Contemporary Knowledge of Fraud Mistake or Defect
592
Freedom from Duress Control or Disability
593
Recognition of Contract as Subsisting
594
Accepting and Retaining Benefits
595
Waiver of Right to Rescind by Acts or Assertions of Owner ship
596
Same Contracts for Sale of Land
597
Same Sale of Property or Offer to Sell
598
Same Use Change of Condition Impairment or Destruc tion of Subject
599
Same Possession or Use for Purpose of Testing
600
Making Payments
601
Duress of Goods 230 Taking Advantage of Financial Necessities
602
Demand or Acceptance of Payment or Security
603
Same Waiver of Default or Delay in Payment
604
Permitting Continuance of Work Under Contract
605
Acceptance of Partial Faulty or Insufficient Performance
606
Laches as Importing Waiver
607
Estoppel by Declarations or Conduct
608
Estoppel by Negligence or Inaction
609
Duress by Threats
610
Same Intention to Ratify
611
Alfirmance by Suing on Contract
612
Compromise Settlement or Further Negotiations
613
Effect of Waiver or Ratification
614
INFANCY
615
Restoration of Former Status in General
616
Necessity of Tender or Restoration of Property
617
Where Restoration is Impossible
618
Instituting or Threatening Civil Suits or Foreclosures 233 Duress of risonment
619
Property Sold or Hypothecated to Third Person
620
Threats of Arrest or Criminal Prosecution
621
Exception as to Property Entirely Worthless
622
Effect of Refusal to Accept Return of Property
623
To Whom Restoration or Tender Should be Made
624
Prosecution of Husband Wife or Relatives
625
Mode Sufficiency and Extent of Restoration
626
Payment or Tender of Value in Lieu of Specific Restoration
627
Holding Property Subject to Sellers Demand or Order
628
Resale of Goods by Buyer for Sellers Account
629
Reconveyance of Land
630
Restoration of Possession of Land
631
CHAPTER X
632
Liability for Waste or Deterioration of Property
633
Accounting for Rents or Rental Value
634
Allowance for Cost of Keeping and Expense of Restoration
635
Allowance for Improvements and Repairs
636
Allowance for Taxes and Incumbrances Paid
637
General Rule
638
Contracts for Benefit of Third Persons
639
Bona Fide Purchasers for Value 641 Same Sales of Personal Property
641
Assignee of PurchaseMoney Notes
642
ACTIONS OR SUITS FOR RESCISSION OR CANCELLATION 643 Jurisdiction of Equity
643
Same Discretion of Court
644
Adequate Remedy at
645
Same Action for Fraud or Deceit
646
Same Defense to Action on Contract or Instrument
647
Same Pendency of Proceedings at
648
Same Insolvency of Defendant
649
Cancellation of Instruments
650
Same Void Instruments
651
Age and Infirmity of Grantor or Donor
652
Applicability of Statute of Limitations
653
Temporary or Permanent Mental Weakness of Subject
654
Form of Remedy
655
Venue of Action
656
BLACK RESC
657
Confidential Relations of Parties in General
658
Real Party in Interest
659
Persons Against Whom Relief is Not Sought
660
Dealings Between Attorney and Client
662
Dealings Between Husband and Wife
664
Dealings Between Parent and Child
665
Allegation of Duress or Undue Influence
666
Allegation of Mental Incompetence
667
Allegation of Mistake
668
Burden of Proof and Evidence
669
Setting Out or Describing Instrument
670
Showing Promptness and Diligence
671
CHAPTER XI
672
Frame of Bill and Prayer for Relief
673
Plea Answer or Counterclaim
674
Trial and Decision by Court or Jury CHAPTER XXXIX
675
Presumptions and Burden of Proof
676
Same Fraud Duress and Undue Influence
677
Same Want of Mental Competence
678
Same Knowledge or Notice Acquiescence or Laches
679
Issues Proof and Variance
680
Admissibility of Evidence
681
Weight and Sulficiency of Evidence
682
Same Fraud and Mistake
683
Same Effect of Lapse of Time
684
General Principles of Granting Relief
685
Decree Ordering Cancellation
686
Decree Ordering Reconveyance
687
Recovery of Money Paid and Interest
688
Adjusting All Rights and Doing Complete Equity
689
Relief Granted Where Rescission Legally Impossible
690
Relief to Plaintiff on Refusing Rescission
691
Conditional or Alternative Relief
692
Granting Necessary Additional Relief
693
Decreeing a Lien on Land
694
In General
700
Revival or Renewal of Contract
706
TABLE OF CASES CITED
721
Capacity of Infants to Contract 284 Validity of Infants Contracts in General 285 Deeds Mortgages and Other Transfers of Real Estate 286 Contracts f...
731
Ratification
767
Disaffirmance or Rescission
770
Who may Rescind or Avoid
772
Same Adult Contracting with Infant is Bound
774
Time for Rescinding or Disaffirming During Minority 308 Same After Attaining Majority
778
Partial Avoidance or Disaffirmance
780
Restoration of Property or Consideration Received 311 Same Property Lost Sold or Dissipated
788
Effect of Avoidance
789
CHAPTER XIII
793
Same Sale for Delivery in Installments 413 Conditional Sales
829
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Страница 24 - 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.
Страница 24 - ... 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.
Страница 230 - There must be a misstatement of an existing fact, but the state of a man's mind is as much a fact as the state of his digestion.
Страница 545 - ... there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.
Страница 374 - Ignorantia juris haud excusat; but in that maxim the word 'jus' is used in the sense of denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact ; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be...
Страница 712 - A contract ultra vires being unlawful and void not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money, parted with on the faith of the unlawful contract, to be recovered back, or compensation to be made for it.
Страница 26 - 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...
Страница 480 - ... where from the nature of the contract it appears that the parties must from the beginning have known...
Страница 670 - A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them;217 provided, that these things have been actually furnished to him or to his family.218 37.
Страница 433 - No principle of the common law has been better established, or more often affirmed, both In this country and In England, than that In sales of personal property, in the absence of express warranty, where the buyer has an opportunity to Inspect the commodity, and the seller Is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies.

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