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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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wise directed by the debtor, apply the performance to the
extinction of all such obligations in equal proportion; and
an application once made by the creditor cannot be rescinded
without the consent of [the] debtor.

3. If neither party makes such application within the time

814



Tit.IV.ch.I.] APPLICATION. § 1479

prescribed herein, the performance must be applied to the
extinction of obligations in the following order; and, if there
be more than one obligation of a particular class, to the
extinction of all in that class, ratably:

1. Of interest due at the time of the performance.

2. Of principal due at that time.

3. Of the obligation earliest in date of maturit}'.

4. Of an obligation not secured by a lien or collateral
undertaking.

5. Of an obligation secured by a lien or collateral under-
taking.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 239, 240; amended by Code Commission,
Act March 16, 1901, Stats, and Amdts. 1900-1, p. 407, held uncon-
stitutional, see history, § 4 ante.

See Kerr's Cyc. C. C. for 58 pars, annotation.

69 C. 120, 121, 10 P. 321, 322 (applied); 81 C. 56, 58, 22 P. 297
(applied); 81 C. 398, 406, 22 P. 871, 873 (referred to); 88 C. 384.
391, 392, 26 P. 601, 603 (construed); 96 C. 441. 443, 31 P. 457
(construed and applied); 97 C. 290, 292, 32 P. 248 (applied);
114 C. 620, 625, 46 P. 613 (cited); 119 C. 283, 302, 63 A. S. 108,
51 P. 2, 542 (referred to); 125 C. 472, 488, 73 A. S. 64, 58 P.
164 (subd. 3 applied to deposits made by corporation); 141 C.
335, 338, 74 P. 999 (applied); 144 C. 776, 782, 78 P. 254 (referred
to); 145 C. 30, 34. 78 P. 245 (defendant is equitably bound, when,
to apply money to payment of debt); 2 C. A. 47, 48, 83 P. 70
(debtor's right to direct application of payments); 4 C. A. 470,
473, 474, 88 P. 497 (application of payment ratably where various
items of account belong to one class).

As to application on several notes or barred note, see 14
L. 208.

Application of payments. — See 13 A. D. 505; 14 A. D. 694: 96
A. S. 44-82; 12 L. 712.



815



§ 1485 CIVIL CODE. [Div.III,Pt.I.

CHAPTER II.

OFFER OF PERFORMANCE.

§ 1485. Obligation extinguished by offer of performance.

§ 1486. Offer of partial performance.

§ 1487. By whom to be made.

§ 1488. To whom to be made.

§ 1489. Where offer may be made.

§ 1490. When offer must be made.

§ 1491. Same. [When obligation does not fix time.]

§ 1492. Compensation after delay in performance.

§ 1493. Offer to be made in good faith.

§ 1494. Conditional offer.

§ 1495. Ability and willingness essential.

§ 1496. Production of thing to be delivered not necessary.

§ 1497. Thing offered to be kept separate.

§ 1498. Performance of condition precedent.

§ 1499. Written receipts.

§ 1500. Extinction of pecuniary obligation.

§ 1501. Objections to mode of offer.

§ 1502. Title to thing offered.

§ 1503. Custody of thing offered.

§ 1504. Effect of offer on accessories of obligation.

§ 1505. Creditor's retention of thing which he refuses to accept.

§1485. OBLIGATION EXTOGUISHED BY OFFER OF
PERFORMAIVCE. An obligation is extinguished by an offer
of performance, made in conformity to the rules herein pre-
scribed, and with intent to extinguish the obligation.

History: Enacted March 21, 1872. '

See Kerr's Cyc. C. C. for 66 pars, annotation.

11 P. 782 (applied); 83 C. 246, 259, 23 P. 869, 873, 17 A. S. 233
(applied to tender of payment of premium on policy of fire
insurance); 98 C. 377, 382, 33 P. 266, 267 (applied); 80 F. 54, 62
(mode of offering performance applies to what offers).

As to concurrent and dependent acts, see Kerr's Cyc. C. C.
§ 1511 and note.

As to necessity of giving indemnity in such case, see 13 A. D.
481; 24 A. S. 566.

As to payment by note, etc., see Kerr's Cyc. C. C. § 1478 and
note par. 15.

816



Tit.IV.ch.II.] BY WHOM MADE. §§ i486, 1487

As to penalty — Offer to pay being insufficient. — See Kerr's
Cyc. C. C. § 1486 and note par. 10.

As to sufficiency and effect of tender, see 77 A. D. 470-491.

Ability and willingness to perform essential. — See Kerr's Cyc.
C. C. § 1495 and note.

Assessment for reclamation of swampland — Tender of war-
rant. — See Kerr's Cyc. Pol. C. § 3465 and note.

Compromise — Offer of. — See Kerr's Cyc. C. C. P. §§ 997, 2078
and notes.

Conditional offer. — See Kerr's Cyc. C. C. § 1494 and note.

Cost not recoverable when tender made before action, if suffi-
cient. — See Kerr's Cyc. C. C. P. § 1030 and note.

Good faith necessary. — See Kerr's Cyc. C. C. § 1493 and note.

Indemnity for lost instrument — Costs. — See 45 A. D. 307; 53
A. D. 513.

Partial performance — Offer of insufficient. — See Kerr's Cyc.
C. C. § 1486 and note.

Production of thing unnecessary unless offer accepted. — See
Kerr's Cyc. C. C. § 1496 and note.

Railroad fare — Tender and payment of. — See Kerr's Cyc. C. C.
§§ 2187-2190 and notes.

Surety discharged by tender by principal where sufficient. —
See Kerr's Cyc. C. C. § 2839 and note.

Time when offer must be made. — See Kerr's Cyc. C. C. §§ 1490,
1491 and notes.

Written offer equivalent to payment. — Sec Kerr's Cyc. C. C.
P. § 2074 and note.

§ 14S6. OFFER OF PARTIAL PERFORMANCE. An offer
of partial performance is of no effect.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 16 pars, annotation.

127 C. 480, 483, 59 P. 901 (referred to as inapplicable): 80 F.
54, 62 (mode of offering performance applies to what offers).

Waiver of obj(!Ction to amount. — Sro Kim'i's (""ye. C C\ ? I'lOl
note.

§ 14S7. IJY >VnO>r TO BE MADE.- An offer of perform-
ance must be made by the debtor, or by some person on his
behalf and with his assent.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

63 C. 129, 139, 49 A. R. 83 (referred to erroneously in dis. op. —
see §1093 C. C); 119 C. 283, 303. 63 A. S. 108, 51 P. 2, 542 (re-

817



§§1488,1489 CIVIL CODE. [Div.III.Pt.I.

ferred to); 80 F. 54, 62 (mode of offering performance applies
to what offers).

As to duty of debtor to seek creditor and make tender of
amount due, see 86 A. D. 520, 521.

§ 1488. TO ^VHOar TO BE MADE. An offer of perform-
ance must be made to the creditor, or to any one of two or
more joint creditors, or to a person authorized by one or
more of them to receive or collect what is due under the
obligation, if such creditor or authorized person is present at
the place where the offer may be made; and if not, wherever
the creditor may be found.

Hi-story: Enacted March 21, 1872; amended March 30, 1874,
Stats, and Amdts. 1873-4, p. 240.

See Kerr's Cyc. C. C. for 9 pars, annotation.

125 C. 687, 690, 58 P. 308 (applied); 141 C. 314, 316, 74 P. 855.
65 L. 90 (promise to repay money advanced by bank is a prom-
ise to pay at the bank); 80 F. 54, 62 (mode of offering perform-
ance applies to what offers).

As to place where tender should be made, see Kerr's Cyc.
C. C. § 1489 and note; also 77 A. D. 479.

§ 1489. WHERE OFFER MAY BE MADE. In the absence
of an express provision to the contrary, an offer of perform-
ance may be made, at the option of the debtor:

1. At any place appointed by the creditor; or,

2. Wherever the person to whom the offer ought to be made
can be found; or,

3. If such person cannot, with reasonable diligence, be
found within this state, and within a reasonable distance
from his residence or place of business, or if he evades the
debtor, then at his residence or place of business, if the same
can, with reasonable diligence, be found within the state; or,

4. If this cannot be done, then at any place within this state.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

98 C. 406, 407, 33 P. 273 (referred to); 113 C. 21, 24, 45 P. 12
(cited); 125 C. 215, 219, 57 P. 989 (cited); 141 C. 314, 316, 74
P. 855, 65 L. 90 (promise to repay money advanced by bank is

818



Tit.IV.ch.II.] WHEN OFFER MADE. §§ 1490-1492

a promise to pay at the bank); 80 F. 54, 62 (mode of offering
performance applies to what offers).

As to place of tender, see Kerr's Cyc. C. C. § 1488 note pars.
8, 9, and 26 A. D. 546.

Sale of goods — Place of delivery. — See Kerr's Cyc. C. C. § 1754
and note.

§ 1490. WHEN OFFER MUST BE MADE. Where an obli-
gation fixes a time for its performance, an offer of perform-
ance must be made at that time, within reasonable hours,
and not before nor afterwards.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 23 pars, annotation.

74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (referred
to); 86 C. 367, 373, 24 P. 1072, 1073 (referred to as inapplicable);
123 C. 1, 20, 69 A. S. 17, 55 P. 713, 43 L. 199 (applied); 127 C.
114, 117, 59 P. 290 (referred to); 80 F. 54, 62 (mode of offering
performance applies to what offers).

As to computation of time, see Kerr's Cyc. C. C. § 10 and note.

As to holidays and Sundays, see Kerr's Cyc. C. C. §§7, 10 and
notes.

§1491. SAME. [WHEX OBLIGATION DOES NOT FIX
TIME.] Where an obligation does not fix the time for its
performance, an offer of performance may be made at any
time before the debtor, upon a reasonable demand, has
refused to perform.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (applied);
80 F. 54, 62 (mode of offering performance applies to what
offers).

"As soon as practicable." — See Kerr's Cyc. C. C. § 1490 and
note par. 4.

Negotiable instrument which does not specify time of pay-
ment, when due. — See Kerr's Cyc. C. C. § 3099 and note.

Notice of election as to delivery of goods sold. — See Kerr's
Cyc. C. C. § 1753 and note.

§1492. COMPENSATION AFTER DELAY IN PERFORM-
ANCE. Where delay in performance is capable of exact and
entire compensation, and time has not been expressly de-

819



§§ 1493, 1494 CIVIL CODE. [Div.III,Pt.I.

Glared to be of the essence of the obligation, an offer of per-
formance, accompanied with an offer of such compensation,
may be made at any time after it is due, but without preju-
dice to any rights acquired by the creditor, or by any other
person, in the meantime.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 13 pars, annotation.

74 C. 250, 256, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (construed
and applied); 92 C. 131, 133, 28 P. 104, 105 (construed and ap-
plied); 93 C. 139, 142, 28 P. 813, 814 (construed and applied);
96 C. 339, 343, 344, 31 P. 161, 162 (construed and applied); 123
C. 1, 10, 20, 69 A. S. 17, 55 P. 713, 43 L. 199 (construed and
lield inapplicable); 133 C. 441, 445, 65 P. 894 (referred to); 80
F. 54, 62 (mode of offering performance applies to what offers).

Time as essence of contract. — See 50 A. D. 597-600.

§ 1493. OFFER TO BE MADE IN GOOD FAITH. An offer
of performance must be made in good faith, and in such man-
ner as is most likely, under the circumstances, to benefit
the creditor.

HLstory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

130 C. 142, 143, 62 P. 400 (applied); 152 C. 17, 21, 23, 91 P. 1001
(cited and applied with other sections); 80 F. 54, 62 (mode of
offering' performance applies to wliat offers).

Ability and willingness essential. — See Kerr's Cyc. C. C. § 1495
and note.

Burden of proof on tenderer. — See Kerr's Cyc. C. C. § 1495
note par. 2.

§ 1494. CONDITIONAL OFFER. An offer of performance
must be free from any conditions which the creditor is not
bound, on his part, to perform.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 17 pars, annotation.

71 C. 498, 503, 12 P. 505, 507 (applied); 122 C. 314, 320, 54 P.
1115 (referred to); 38 P. 39, 41 (construed); 125 C. 687, 690, 58
P. 308 (construed); 126 C. 657, 668, 59 P. 146, 47 L. 334 (referred
to); 80 F. 54, 62 (mode of offering performance applies to what
offers).

820



Tit.IV.ch.II.] ABILITY, ETC., NECESSARY. §§ 1495-1497

Answer alleging conditional tender. — See Kerr's Cyc. C. C.
§ 1485 and note.

Condition precedent — Riglit to demand performance of, and
effect of failure to comply. — See Kerr's Cyc. C. C. § 1*498 and note.

Receipt may be required. — See Kerr's Cyc. C. C. § 1499 and
note par. 5.

Waiver of conditions annexed to tender. — See Kerr's Cyc. C.
C. § 1501 and note par. 4.

§1495. ABILITY AND WILLINGNESS ESSENTIAL. An

offer of performance is of no effect if the person making it
is not able and willing to perform according to the offer.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

74 C. 250, 256, 5 A. S. 435, 14 P. 369, 372, 15 P. 773 (applied);
109 C. 630, 633, 42 P. 298 (applied); 152 C. 17, 22. 23, 91 P. 1001,
1003 (cited and applied with other sections); 80 F. 54. 62 (mode
of offering performance applies to what offers).

Readiness and willingness to pay alone not sufficient. — See
Kerr's Cyc. C. C. § 1493 and note par. 2.

§ 1496. PRODUCTION OF THING TO BE DELIVERED
NOT NECESSARY. The thing to he delivered, if any, need
not in any case he actually produced, upon an offer of per-
formance, unless the offer is accepted.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 11 pars, annotation.

97 C. 147, 151, 31 P. 928 (construed and applied); 36 P. 1026,
1027, 1028 (applied); 137 C. 286, 288, 70 P. 82, 83 (applied); 152
C. 17, 22, 91 P. 1001 (construed with § 2074 C. C. P. as not dis-
pensing with requirements of §§1493, 1495 C. C); 3 C. A. 190,
192, 85 P. 665 (applied to sale of horses); 80 F. 54, 62 (mode
of offering performance applies to what offers).

§ 1497. THING OFFERED TO BE KEPT SEPARATE. A

thing, when offered hy way of performance, must not be
mixed with other things from which it cannot be separated
immediately and without difficulty.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.
80 F. 54, 62 (mode of offering performance applies to what
offers).

821



§§ 1498-1500 CIVIL CODE. [Div.III,Pt.I.

As to duty of seller of chattel to put it in condition fit for
delivery, see Kerr's Cyc. C. C. § 1753 and note.

§ 1498. PERFOBMANCE OF CONDITION PRECEDENT.

When a debtor is entitled to the performance of a condition
precedent to, or concurrent with, performance on liis part,
he may make liis offer to depend upon the due performance
of such condition.

HKstory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

49 C. 18, 25 (referred to in construing antenuptial contract);
74 C. 250, 255, 5 A. S. 435, 14 P. 369, 371, 15 P. 773 (applied and
construed); 87 C. 49, 59, 25 P. 249, 252 (cited); 122 C. 314, 321,
54 P. 1115 (applied); 123 C. 535, 543, 56 P. 453 (cited); 125 C.
687, 690, 58 P. 308^(cited with § 1499); 137 C. 286, 289, 70 P. 82, 83,
(applied); 149 C 627, 642, 87 P. 93 (applied — right to have recon-
veyance of mortgaged property delivered upon payment of mort-
gage debt); 152 C. 17, 22, 91 P. 1001 (not applicable to what
case); 4 C. A. 361, 367, 88 P. 287 (obligation of contract is not
condition precedent unless made so how) ; 80 F. 54, 62 (mode
of offering performance applies to what offers).

Receipt may be demanded. — See Kerr's Cyc. C. C. § 1499 and
note par. 5.

§ 1499. ^VRITTEN RECEIPTS. A debtor has a right to
require from his creditor a written receipt for any property
delivered in performance of his obligation.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

49 C. 18, 25 (referred to in construing antenuptial contract);
125 C. 687, 690, 58 P. 308 (construed and applied); 80 F. 54, 62
(mode of offering performance applies to what offers).

As to general rule, to which this section is exception, that
offer must be unconditional, see Kerr's Cyc. C. C. § 1494 and
note.

Evidence — Receipt as. — See Kerr's Cyc. C. C. § 1473 and note.

Surrender of negotiable instrument on payment. — See Kerr's
Cyc. C. C. § 3137 and note.

§ 1500. EXTINCTION OF PECUNIARY OBLIGATION. An

obligation for the payment of money is extinguished by a due
offer of payment, if the amount is immediately deposited in

822



Tit.IV.ch.II.] OBJECTIONS TO MODE. §§ 1501, 1502

the name of the creditor, with some bank of deposit within
this state, of good repute, and notice thereof is given to the
creditor.

HLstory: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 16 pars, annotation.

82 C. 46, 51, 22 P. 1131 (cited); 98 C. 390, 395, 399, 33 P. 433,
436 (construed with §2839); 11 P. 781, 782 (cited); 107 C. 107,
115, 40 P. Ill (applied); 112 C. 31, 37, 53 A. S. 155, 44 P. 305
(construed); 119 C. 538, 544, 51 P. 863 (cited); 119 C. 545, 550,
51 P. 853, 52 P. 44 (construed); 123 C. 535, 543, 56 P. 453, 454
(construed); 137 C. 376, 382, 70 P. 225, 226 (cited); 141 C. 710.
712, 713, 75 P. 342 (construed); 151 C. 553, 555, 557, 91 P. 385
(applied — what acts constitute payment); 2 C. A. 622, 623, 84
P. 274 (deposit of amount of rent in bank is not extinguish-
ment of rent when); 3 C. A. 399, 402, 86 P. 736 (what tender will
stop interest though money is not deposited in bank); 4 C. A.
361, 367, 88 P. 287 (obligation for payment of money is not
extinguished by tender, unless money is deposited in bank); 5
C. A. 249, 251, 90 P. 50 (deposit must be unconditional — owner-
ship of deposit); 80 F. 54, 62 (mode of offering performance
applies to what offers).

Interest stopped by tender. — See Kerr's Cyc. C. C. § 1504 and
note pars. 3-7.

§ 1501. OBJECTIONS TO MODE OF OFFER. All objections
to the mode of an offer of performance, which the creditor
has an opportunity to state at the time to the person making
the offer, and which could be then obviated by him, are
waived by the creditor, if not then stated.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.'

73 C. 526, 530, 15 P. 89, 91 (applied); 79 C. 34, 43, 21 P. 357.
359 (applied); 87 C. 49, 59, 25 P. 249, 252 (cited); 36 P. 1026,
1027, 1028 (applied); 109 C. 558, 564, 42 P. 39 (applied): 122 C.
314, 320, 321, 322, 54 P. 1115 (construed and applied); (C. June
15, 1900), 61 P. 472, 474 (applied); 137 C. 286, 288, 70 P. 82
(applied); 137 C. 376, 382, 70 P. 225, 226 (referred to); 80 F. 54,
62 (mode of offering performance applies to what offers).

Specification of objections to tender. — See Kerr's Cyc. C. C.
P. § 2076 and note.

§ 1502. TITLE TO THING OFFERED. The title to a thing
duly offered in performance of an obligation passes to the

823



§§ 1503, 1504 CIVIL CODE. [Div.III.Pt.I.

creditor, if the debtor at the time signifies his intention to
that effect.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

98 C. 390, 399, 33 P. 433 (referred to); 106 C. 441, 446, 39 P.
853 (applied); 80 F. 54, 62 (mode of offering performance applies
to what offers).

§ 1503. CUSTODY OF THING OFFERED. The person
offering a thing, other than money, by way of performance,
must, if he means to treat it as belonging to the creditor,
retain it as a depositary for hire, until the creditor accepts
it, or until he has given reasonable notice to the creditor
that he will retain it no longer, and, if with reasonable dili-
gence he can find a suitable depositary therefor, until he has
deposited it with such person.

History: Enacted laarch 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

3 C. A. 190, 192, 85 P. 665 (applied to horses sold); 80 F. 54,
62 (mode of offering performance applies to what offers).

Depositary for hire. — See Kerr's Cyc. C. C. §§ 1851, 1852 and
notes.

§ 1504. EFFECT OF OFFER ON ACCESSORIES OF OBLI-
GtATION. An offer of payment or other performance, duly
made, though the title to the thing offered be not transferred
to the creditor, stops the running of interest on the obliga-
tion, and has the same effect upon all its incidents as a
performance thereof.

Hi.story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 13 pars, annotation.

50 C. 650, 651 (referred to); 74 C. 250, 256, 5 A. S. 435, 14 P.
369, 372, 15 P. 773 (construed and applied); 98 C. 390, 399. 33
P. 433, 436 (referred to); 113 C. 656, 662, 45 P. 872 (applied);
123 C. 535, 543, 56 P. 453 (cited); 143 C. 663, 667. 670, 77 P. 653
(construed and applied); 149 C. 627, 642, 87 P. 93 (tender stops
interest); 151 C. 553, 557, 91 P. 385 (offer of payment, without
deposit in bank, effect of); 152 C. 426, 432. 93 P. 110 (not ap-
plicable to mere option to redeem); 3 C. A. 399. 402, 86 P. 736
tender stops interest) ; 80 F. 54, 62 (referred to in discussing acts

824



Tit.IV.ch.IL]



RETENTION, EFFECT. § 1505



L



excusing tender— mode of offering performance applies to what

offers)

As to undetermined sum due, see Kerr's Cyc. C. C. § 1504, note

'^^Costs— Effect of tender upon.— See Kerr's Cyc. C. C. P. § 1030

and note. , ,-, r^ r> & len^

Deposit in court not necessary.— See Kerr s Cyc. C. C. § 1504

note par. 5.

§ 1505. CREDITOR'S RETEiVTIOX OF THI>0 WHICH HE
REFUSES TO ACCEPT. If anything is given to a creditor
by way of performance, which he refuses to accept as such,
he is not bound to return it without demand; but if he retains
it, he is a gratuitous depositary thereof.

Hi.story: Enacted March 21, 1872.

See Kerr's Cvc. C. C. for 2 pars, annotation.

3 C A 583 588, 86 P. 825 (not applicable if there is no refusal
to accept-duty of creditor to return draft unless it is refused):
80 F. 54, 62 (mode of offering performance applies to 'n hat

off prs")

Common-law rule declared by above section.— See Kerr's Cyc.

C. C. §1505 note par. 1. ,„._ j

Gratuitous deposit—See Kerr's Cyc. C. C. §§1844, 184< and

notes.



825



§ 1511 CIVIL CODE. [Div.III.Pt.I.

CHAPTER III.

PREVENTION OF PERFORMANCE OR OFFER.

§ 1511. What excuses performance, etc.

§ 1512. Effect of prevention of performance.

§ 1513. Same [repealed].

§ 1514. Same. [Ratable portion of consideration, when.]

§ 1515. Effect of refusal to accept performance before offer.

§1511. WHAT EXCUSES PERFOBMANCE, ETC. The

want of performance of an obligation, or of an offer of per-
formance in whole or in part, or any delay therein, is excused
by the following causes, to the extent to which they operate:

1. When such performance or offer is prevented or delayed
by the act of the creditor, or by the operation of law, even
though there may have been a stipulation that this shall not
be an excuse;

2. When it is prevented or delayed by an irresistible, super-
human cause, or by the act of public enemies of this state
or of the United States, unless the parties have expressly
agreed to the contrary; or,

3. When the debtor is induced not to make it, by any act
of the creditor intended or naturally tending to have that
effect, done at or before the time at which such performance
or offer may be made, and not rescinded before that time.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 28 pars, annotation.

95 C. 353, 357, 30 P. 555 (construed); 96 C. 349, 352, 31 P. 244
(construed); 98 C. 390, 399, 33 P. 433, 436 (referred to); 34 P.
216, 218 (construed); 119 C. 99, 102, 51 P. 27 (construed); 129
C. 222, 227, 61 P. 1085 (construed); 144 C. 397, 401, 77 P. 996
(applied to agreement to repurchase bonds); 149 C. 108, 113,
84 P. 993 (applied to sale under deed of trust); 153 C. 234, 241,
94 P. 889 (what is not an act described in this section); 2 C. A.
534, 535, 84 P. 305 (issuance of injunction does not excuse per-
formance of contract — it is not delay caused by "operation of
law"); 4 C. A. 379, 381, 88 P. 292 (valid ordinance excuses per-
formance of contract, — it is performance prevented "by opera-

826



Tit.IV.ch.III.] PREVENTION. §§ 1512-1514

tion of law"); 80 F. 54, 62, 63 (construed in discussing acts ex-
cusing' tender).

As to deposit in bank when tender is evaded, see Kerr's Cj'C.
C. C. § 1500 and note par. 7.

Same — Deed delivered as escrow. — See Kerr's Cyc. C. C. $ 1057
and note.

Evasion of tender. — See Kerr's Cyc. C. C. § 1512 and note
par. 15.

§ 1512. EFFECT OF PKEVENTIOX OF PEKFOHM.VX E.

If the performance of au obligation be prevented by the
creditor, the debtor is entitled to all the benefits which he
would have obtained if it had been performed by both parties.

Hlntory: Enacted March 21, 1872; amended March 30. T^T).
Code Amdts. 1873-4, p. 240.

See Kerr's Cyc. C. C. for 24 pars, annotation.

86 C. 605, 614. 25 P. 137, 139, 487 (applied); 92 C. 176, 182, 28 P.
222, 223 (applied); 105 C. 514, 520, 45 A. S. 87, 39 P. 200 (con-



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