it be of any value. In some cases a party may rescind without the consent of the opposite party, for non-performance by him of his covenants; but this can be done only when both parties can be restored to the condition in which they were before the contract was made. Where a contract of sale is rescinded for fraud, the rights of the vendor reclaiming the goods are superior to those of one who has acquired the goods or a lien thereon in consideration of an antecedent debt." (Secs. 4304-4307.) § 18. Same; Alabama.-In the statutory law of this state it is provided that "misrepresentation of a material fact, made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitutes legal fraud," and that "suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case." " 106 $ 19. Same; Louisiana.-The Code of this state provides that “engagements made through error, violence, fraud, or menace are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence, or menace, or by the representatives of such parties. They may be avoided either by exceptions to suits brought on such contracts, or by an action brought for that purpose." 107 The term "error," as used above, is substantially equivalent to "mistake" as used in equity jurisprudence, and the terms "violence" and "menace" are practically equivalent to the common-law terms "duress of imprisonment" and "duress per minas." But the word "fraud" is defined with great particularity in the law of Louisiana, as follows. "Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or con 106 Code Ala. 1907, §§ 4298, 4299. 107 Rev. Civ. Code La., §§ 1881, 1882. tinued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules: 1. Error is an essential part of the definition; an artifice that cannot deceive can have no effect in influencing the consent and cannot injure the validity of the contract. 2. The error must be on a material part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it, but it need not be the principal cause of the contract, as it must be in the case of simple error without artifice. 3. A false assertion as to the value of that which is the object of the contract is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he who is induced to contract by means of the assertion might with ordinary attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other. 4. But a false assertion of the value or cost or quality of the object will constitute such artifice if the object be one that requires particular skill or habit, or any difficult or inconvenient operation, to discover the truth or falsity of the assertion. Sales of articles falsely asserted to be composed of precious metals, sales of merchandise by a false invoice, of any article by a false sample, of goods in packages or bales, which cannot without inconvenience be unpacked or inspected, or where the party making the sale avoids the inspection, with intent to deceive, sales of goods at sea or at a distance, are, with others of like nature, referable to this rule. 5. It must be caused or continued by artifice, by which is meant either an assertion of what is false, or a suppression of what is true, in relation to such part of the contract as is stated in the second rule. 6. The assertion and suppression mentioned in the last preceding rule mean not only an affirmation or negation by words either written or spoken, but any other means cal culated to produce a belief of what is false, or an ignorance or disbelief of what is true. 7. The artifice must be designed to obtain either an unjust advantage to the party for whose benefit the artifice is carried on, or a loss or inconvenience to him against whom it is practised, although attended with advantage to no one. 8. It is not necessary that either of the effects mentioned. in the last preceding rule should have actually been produced; it is sufficient to constitute the fraud that such would be the effect of the contract if it were actually performed. 9. If the artifice be practised by a party to the contract, or by another with his knowledge or by his procurement, it vitiates the contract; but if the artifice be practised by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be void on account of error, if that error be of such a nature as to invalidate it; in this case, the party injured may recover his damages against the person practising the fraud. 10. In the words 'loss or inconvenience' which may be suffered by the party is included the preventing him from obtaining any gain or advantage which, without the artifice, he might have obtained. 11. If the advantage to be gained by the party in favor of whom the artifice is practised gives him no unjust advantage, that is to say, no advantage at the expense of the other party, and this latter would neither suffer inconvenience nor loss in consequence of the deception, if the contract were performed, the artifice does not vitiate it. 12. Combinations with respect to sales to enhance the price by false bids, or to depress it by false assertions, are artifices, which invalidate the contract when practised by those who are parties to it, or give rise to an action for damages where they are not. Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed means BLACK RESC.-3 no more than that it is not to be imputed without legal evidence." 108 It is also provided in the laws of this state that "if a promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise, to wit: he who has given the earnest, by forfeiting it, and he who has received it, by returning the double." " 109 Rescission of a contract may also be effected under the civil law (in force in Louisiana) by the operation of a "resolutory condition," which corresponds to what the common law knows as one of the kinds of a condition subsequent. It is defined as "that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. It does not suspend the execution of the obligation. It only obliges the creditor to restore what he has received in case the event provided for in the condition takes place.' 99 110 Rescission of the contracts of minors is provided for in the law of this state, with much care and detail. "Simple lesion," that is, any loss or inadequacy of consideration, will warrant the rescission of all contracts in favor of a minor not emancipated, or of contracts beyond the capacity of an emancipated minor, provided it does not happen in consequence of a casual and unforeseen event. A minor engaged in trade or being an artisan cannot repudiate engagements entered into in the way of his business or art. Nor can a minor disaffirm engagements stipulated in his marriage contract if sanctioned by those whose consent is necessary to the validity of the marriage, nor obligations 108 Rev. Civ. Code La., §§ 1847, 1848. 109 Rev. Civ. Code La., § 2463. And see Legier v. Braughn, 123 La. 463, 49 South. 22. An agreement for the sale of real estate, contemplating the passing of property by an act to be executed at a later date, and which in other respects contains the elements essential to a sale, is a "promise of sale," within the meaning of this provision. Smith v. Hussey, 119 La. 32, 43 South. 902. 110 Rev. Civ. Code La., § 2045; Moss v. Smoker, 2 La. Ann. 991; Police Jury v. Reeves, 6 Mart. (N. S.) 221; Miquez v. Delcambre, 125 La. 176, 51 South. 108. resulting from his offenses or quasi offenses, nor contracts ratified after attaining majority. The fact that the minor, at the time of making the contract, falsely represented himself to be of full age will be no bar to his relief in a proper case. On the disaffirmance of a contract of a minor, he cannot be required to make restoration or reimbursement of what he has received under the contract, "unless it be proved that what was paid accrued to his benefit." 111 The doctrine of rescission on account of "lesion" is a principle of the civil law adopted and in force in Louisiana, which corresponds in some particulars to the rules of the common law with respect to the annulling of contracts for failure or inadequacy of consideration. But it can be invoked only in the case of the partition, sale, or exchange of real property, and only in behalf of the vendor, not of the purchaser. This subject will be more fully discussed in a later chapter. 111 Rev. Civ. Code La., §§ 2222-2230, 1872. |