it null if demanded by any of the parties, as, for example, mistake, force, fraud, deceit, want of sufficient age, etc. Nullity relates generally to public order, and cannot therefore be made good either by ratification or prescription, so that the tribunals ought, for this reason alone, to decide that the null act can have no effect, without stopping to inquire whether the parties to it have or have not received any injury. Rescission, on the contrary, may be made good by ratification or by the silence of the parties, and neither of the parties can demand it unless he can prove that he has received some prejudice or sustained some damage by the act." So, also, with special reference to sales of personal property, in the law of Louisiana, derived in this respect from the Roman law, "redhibition" is the avoidance of a sale on account of some vice or defect in the thing sold, which either renders it absolutely useless or renders its use so inconvenient and imperfect that it must be supposed the buyer would not have taken it if he had known of the defect; and if the thing affected with redhibitory vices has perished, through the badness of its quality, the seller must bear the loss.8

3. To What Classes of Obligations Rescission Applies. Loosely the term "rescission" has been employed in a wide and generic sense. But it is not properly applicable to the undoing of anything except that which has been the subject of a mutual agreement. The term does not, for instance, properly characterize the repeal of a statute, the setting aside of a judgment or decree, or the revocation of a will. It should be restricted to the cancellation of contracts and grants involving mutual obligations. Again, before there can be any "rescission," properly so called, there must be a contract completely formed and in force, or at least provisionally binding on the parties. So long as the subject-matter rests in mere negotiation or the tender of an option, either party may be privileged to recede from his propositions and decline to proceed further. But the mere withdrawal of an offer, or, on the other hand, the refusal to

7 Sunol v. Hepburn, 1 Cal. 255, 281.

8 Morphy v. Blanchin, 18 La. Ann. 133; Civ. Code La. art. 2520; Poth. Contr. Sales, 203; Mackeldey, Modern Roman Law, § 403.

accept an offered proposition, is not a "rescission" of anything. Nor is there a rescission when a contract is entered into by agents or representatives of one or both parties, upon the condition that the principals, or one of them, shall accept it. In this case, there is no operative contract until such acceptance, and the refusal to accept, or the lapse of the intended contract for failure of acceptance, is the withdrawal from a negotiation, but is not technically a rescission, because there has been no binding obligation created.10

§ 4. Voidability as an Element of the Right of Rescission.-Rescission is often spoken of as the undoing of a "voidable" contract. But this is not strictly correct. For it must not be forgotten that the parties themselves, by their mutual consent and agreement, may rescind a contract which is not for any reason subject to be avoided by one alone, but on the contrary is perfectly valid and binding. It is therefore more proper to say that contract is not rescindable at the option of one party, against the wish of the other, or on an application to the court by one party, opposed by the other, unless for some cause it is voidable at the election of the former. On the other hand, where an instrument is void on its face (not merely voidable), it is not in general necessary to resort to any proceeding, legal or equitable, to have it so declared,11 although, in a suit to quiet title, equity has jurisdiction to cancel an instrument of title at the suit of one in possession under a good title, even though the instrument be void on its face.12

• Smithmeyer v. United States, 147 U. S. 342, 13 Sup. Ct. 321, 37 L. Ed. 196; Walrath v. Hanover Fire Ins. Co., 139 App. Div. 407, 124 N. Y. Supp. 54; Dietz v. Farish, 53 How. Prac. (N. Y.) 217; Borst v. Simpson, 90 Ala. 373, 7 South. 814; Scanlon v. Oliver, 42 Minn. 538, 44 N. W. 1031; McDonald v. Huff (Cal.) 18 Pac. 243; Gordon v. Darnell, 5 Colo. 302; Miller v. Moffat, 153 Ill. App. 1; Abbott v. Dow, 133 Wis. 533, 113 N. W. 960. But see Harper v. City of Newburgh, 159 App. Div. 695, 145 N. Y. Supp. 59. 10 Hartford Fire Ins. Co. v. Wilson, 189 U. S. 467, 23 Sup. Ct. 189, 47 L. Ed. 261; Brown v. American Central Ins. Co., 70 Iowa, 390, 30 N. W. 647.

11 Ehrlich v. Shuptrine, 117 Ga. 882, 45 S. E. 279.

12 Whitehouse v. Jones, 60 W. Va. 680, 55 S. E. 730, 12 L. R. A. (N. S.) 49. See Burt v. Bowles, 69 Ind. 1.

§ 5. Rescission and Breach of Contract Distinguished. One who simply breaches his contract does not thereby rescind it, though his act may give the other party a right to claim rescission and restoration.13 Yet it is not every breach of a contract which authorizes a rescission, the injured party being generally required to seek damages as a remedy.1 For facts which will ordinarily warrant the rescission of a contract must have existed at the time the contract was made.15 Thus, the failure of the seller of a machine to fulfill a promise to put it in good working order will not justify a rescission of the sale and recovery of the purchase price, but merely the recovery of damages.16 So, a plaintiff is not entitled to rescind his contract with defendant for the purchase of growing agricultural products, merely because the defendant has violated his duty with respect to the care of the crop, where it is not claimed that the contract is tainted by fraud, accident, mistake, duress, or undue influence, or that there has been a total failure of consideration, or that defendant is insolvent, or that any damages awarded against him could not be recovered.17 But where, in a contract for service, the employer prevents the other party from performing the contract, it is optional with the latter to rescind the agreement, and resort to an action for work and labor performed.18

§ 6. Abandonment or Repudiation of Contract Distinguished.—Where one of the parties to a contract unjustifiably abandons it or repudiates it, and refuses to proceed with it, this does not constitute a rescission of the contract.1 Such conduct may and generally will justify the

13 City of Nebraska City v. Nebraska City Hydraulic Gaslight & Coke Co., 9 Neb. 339, 2 N. W. 870.

14 Summers Fiber Co. v. Walker, 33 Ky. Law Rep. 153, 109 S. W. 883.

15 Badger State Lumber Co. v. G. W. Jones Lumber Co., 140 Wis. 73, 121 N. W. 933.

16 McSwegan v. Gatti-McQuade Co., 50 Misc. Rep. 338, 98 N. Y. Supp. 692.

17 Summers Fiber Co. v. Walker, 33 Ky. Law Rep. 153, 109 S. W. 883.

18 Connelly v. Devoe, 37 Conn. 570.

19 Schweikert v. Seavey, 130 Cal. xviii, 62 Pac. 600; Peabody v. Bement, 79 Mich. 47, 44 N. W. 416.

other party in declaring a rescission of the contract and in insisting upon a restoration of the status quo and the other usual incidents of a technical rescission.20 Or such other party may tacitly acquiesce in treating the refusal to continue with the contract as equivalent to a rescission of it. "Where one party assumes to renounce a contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not, of course, amount to a rescission of the contract, because one party to a contract cannot by himself rescind it; but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation.” 21 But in respect to the effect upon the rights of the parties, there is a wide difference between a rescission proper and a mere abandonment of the contract. In the former case the one party in effect says to the other: "I hereby rescind our contract, demanding the restoration of whatever I have paid or given under it, and offering to do the like by you." In the latter case, he may be regarded as saying: "I refuse to proceed with the contract. I will restore nothing, and will take my chance of your compelling me, by suit, to make you whole or pay you damages." 22

20 Fletcher v. Cole, 23 Vt. 114; Barbee v. Armstead, 32 N. C. 530, 51 Am. Dec. 404. And see Wood Mfg. & Realty Co. v. Thompson, 149 App. Div. 253, 133 N. Y. Supp. 718. Where the holder of an assessment policy of insurance voluntarily ceases payment of assessments and abandons his policy, he cannot thereafter recover damages for its cancellation. Green v. Hartford Life Ins. Co., 139 N. C. 309, 51 S. E. 887, 1 L. R. A. (N. S.) 623.

21 Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, citing Hochster v. De La Tour, 2 El. & Bl. 678; Jonstone v. Milling Co., 16 Q. B. Div. 467.

22 See Clark v. American Developing & Mining Co., 28 Mont. 468, 72 Pac. 978.

Either party to an executory contract can stop further performance by the other party, at any time, by an explicit direction to that effect or by a renunciation of the contract and refusal of further performance on his own part. But thereby he renders himself liable to an action for damages, and to the further contingency that a court of equity might, in some circumstances, decree specific performance against him.23 And since this is not properly a rescission of the contract, the party abandoning it cannot complain if the other party retains whatever he may have received or acquired under it.24 But besides the technical rescission of a contract, releasing each party from every obligation under it, as if it had never been made, there is a mode of abandoning a contract, as a live and enforceable obligation, which still entitles the party declaring its abandonment to look to the contract to determine the compensation he may be entitled to under its terms for the breach which gave him the right of abandonment. Such an abandonment, following upon the renunciation of the other party and his refusal to perform, is not a rescission of the contract, but a mere acceptance of the situation which the wrongdoing of the other party has brought about.25 But merely because a given act or course of conduct by one party is inconsistent with the contract is not sufficient to authorize the other to renounce it, but it must be inconsistent with an intent to be bound by it any longer; and while every breach is inconsistent with the contract, it is not every breach by one party that will authorize the other totally to renounce the contract.26

23 International Text-Book Co. v. Jones, 166 Mich. 36, 131 N. W. 98; Wigent v. Marrs, 130 Mich. 609, 90 N. W. 423; Robinson v. Stow, 39 Ill. 568; Trinidad Asphalt Mfg. Co. v. Buckstaff Bros. Mfg. Co., 86 Neb. 623, 126 N. W. 293, 136 Am. St. Rep. 710; Hixson Map Co. v. Nebraska Post Co., 5 Neb. (Unof.) 388, 98 N. W. 872. 24 Stratton v. California Land & Timber Co., 86 Cal. 353, 24 Pac. 1065, citing Ketchum v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Hansbrough v. Peck, 5 Wall. 506, 18 L. Ed. 520.

25 Anvil Min. Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814; Goodman v. Haynes Automobile Co., 205 Fed. 352, 123 C. C. A. 480; Hayes v. City of Nashville, 80 Fed. 641, 26 C. C. A. 59; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 32 N. E. 773, 30 L. R. A. 33. And see Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937, 127 Am. St. Rep. 862, 15 Ann. Cas. 819.

26 McAllister-Coman Co. v. Matthews, 167 Ala. 361, 52 South. 416, 140 Am. St. Rep. 43.