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notes.

As to contract by married women, see Kerr's Cyc. C. C. §§ 15S,
159, 167 and notes.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1557. MINORS, ETC. Minors and persons of unsound
mind, have only such capacity as is defined by part one of
division one of this code.

History: Enacted March 21, 1872.

As to acts which infant.s would have been compelled by law
to do, see 18 A. S. 641.

As to contracts entered into by infants pursuant to statutfS.
see 18 A. S. 638.

As to contracts for necessaries, sco Kerr's Cyc. C. C. § 36 and
note; 18 A. S. 643-661.

As to contracts of infants, see Kerr's Cyc. C. C. §§ 33-3" and
notes; 18 A. S. 573-724.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to trading contracts of infants, see Kerr's Cyc. C. C. § 36
note pars. 32, 34, 36, 37. 50. 62, 63, 70, 73. 75, 76, and note 18
A. S. 598-605.

861



§§ 1558, 1559 CIVIL CODE. [Div.III.Pt.II.

§ 1558. IDENTIFICATION OF PARTIES NECESSARY. 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.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.
' As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1559. WHEN CONTRACT FOR BENEFIT OF THIRD
PERSON MAY BE ENFORCED. 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.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 32 pars, annotation.

68 C. 383, 389, 9 P. 723 (construed and applied); 73 C. 522,
525, 15 P. 100, 101 (construed and applied); 94 C. 82, 84, 29 P.
336 (construed and applied); 95 C. 160, 168, 27 P. 160, 162, 30
P. 196 (construed and applied); 35 P. 304 (construed and ap-
plied); 106 C. 547, 553, 40 P. 27 (construed and applied); 109 C.
133, 136, 41 P. 868 (construed and applied); 110 C. 339, 346, 52
A. S. 88, 42 P. 900, 31 L. 862 (construed and applied); 112 C.
255, 258, 44 P. 466 (construed and applied); 120 C. 571, 574, 65 A.
S. 203, 52 P. 813 (construed and applied); 142 C. 702, 708, 76 P.
654, 655 (construed and applied); 1 C. A. 239, 240, 81 P. 1117
(applied); 2 C. A. 703, 708, 84 P. 244 (applied to release); 6 C. A.
101, 102, 91 P. 422 (applied to maker's transfer of his business).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to promise for benefit of third person, and right to sue
thereon, see 3 A. D. 305; 9 A. D. 155-157; 39 A. S. 531-535; 71
A. S. 176-207.

As to right of third party to sue upon contract made for his
benefit, see 25 L. 257-280.






862



Tit.I.ch.III.] CONSENT, ESSENTIALS. § 1565



CHAPTER III.

CONSENT.

§ 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.

§ 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.



§ 1565. ESSEMIALS OF CONSENT. The consent of the
parties to a contract must be:

1. Free;

2. Mutual; and,

3. Communicated by each to the other.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 18 pars, annotation.

82 C. 351, 398. 16 A. S. 137, 23 P. 16 (construed and applied
with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707. 9 L.
376 (construed and applied with other sections); 53 P. 703
(construed and applied): 123 C. 428, 431, 56 P. 103 (referred
to); 125 C. 472, 481, 73 A. S. 64, 58 P. 164 (construed and

863



§ 1566 CIVIL CODE. [Div.III,Pt.II.

applied); 135 C. 561, 563, 67 P. 1054 (construed and applied
with §1550); 139 C. 507, 512, 73 P. 247 (construed and applied
with §1550); 140 C. 157, 162, 73 P. 840 (construed and applied);
151 C. 630, 635, 91 P. 536 (consent — ^contract cannot be rescinded
when); 4 C. A. 371, 376, 88 P. 294 (instance of consent as result
of mistake).

As to acceptance of proposal consummating the contract, see
21 A. D. 305.

As to communication of consent, see Kerr's Cyc. C. C. §§ 1581,
1582 and notes.

As to effect of uncertainty in any particular, see 32 A. R. 51.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to meeting- of minds and acceptance, see 3 L. 94.

As to mode of communicating consent. See Kerr's Cyc. C. C.
§ 1582 and note.

As to mutuality of acceptance, see Kerr's Cyc. G. C. § 1580
and note; also 7 A. D. 492.

As to necessity of acceptance in accordance with terms of
offer, see 32 A. R. 51.

As to necessity of acceptance within a reasonable time, see
32 A. R. 52.

As to rescission of contract, see Kerr's Cyc. C. C. § 1689 and
note.

As to sufficiency of contract by offer and acceptance with-
out execution of contemplated formal agreement, see 29 L.
431-437.

As to where consent obtained by fraud, etc., see Kerr's Cyc.
C. C. §§ 1568-1575 and notes.



§1566. COIVSEIVT, WHEJf VOIDABLE. A consent which
is not free is nevertheless not absolutely void, but may be
rescinded by the parties, in the manner prescribed by the
chapter on rescission.

History: Enacted March 21, 1872.

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

71 C. 428, 440, 12 P. 454, 460 (construed and applied with other
sections); 82 C. 351, 399, 16 A. S. 137, 23 P. 16 (construed and
applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P.
707, 9 Tj. 376 (construed and applied with other sections);
95 C. 636, 639, 30 P. 787 (cited); 40 P. 488 (cited); 110 C. 374,
379, 42 P. 896 (construed and applied with §1691); 126 C. 498,
504, 58 P. 1053 (applied to application for life insurance policy);
129 C. 68, 82, 84, 85, 58 P. 92, 61 P. 667 (construed and applied
with other sections); 68 P. 484 (construed with §1578); 150

864



1



Tit.T.ch.TIT.] APPARENT CONSENT. § 1557

C. 370, 373, 89 P. 109 (consent given through mistake is subject
to rescission); 151 C. 630, 635, 91 P. 526 (consent — contract can-
not be rescinded when); 7 C. A. 49, 55, 93 P. 400, 402 (applied).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to rescission of contract, see Kerr's Cyc. C. C. §§ 16S8-
1691 and notes.



§ 1567. APPARENT CONSENT, WHEN NOT FREE. Au

apparent conseut is not real or free when obtained through:

1. Duress;

2. Menace;

3. Fraud;

4. Undue Influence; or,

5. Mistake.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

71 C. 428, 440, 12 P. 454, 460 (construed and applied witli other
sections); 82 C. 351, 399, 16 A. S. 137, 23 P. 16, 28 (construed
and applied with other sections); 85 C. 11, 30, 20 A. S. 197, 24
P. 707, 711, 9 L. 376 (construed and applied with other sec-
tions); 40 P. 488, 489 (construed and applied with §1570); 129
C. 68, 85, 58 P. 92, 61 P. 667 (construed and applied with other
sections); 134 C. 547, 548, 86 A. S. 294, 66 P. 730 (construed
with other sections); 141 C. 56, 62, 74 P. 433 (construed and
applied); 150 C. 370, 373, 89 P. 109 (consent given through mis-
take is subject to rescission); 151 C. 630, 635, 91 P. 526 (consent
— contract cannot be rescinded when); 4 C. A. 371, 376, SS P.
294 (subds. 3-5 applied — illustration of deed having been ob-
tained by undue Influence); 7 C. A. 49, 53, 93 P. 400, 402
(applied); 94 P. 419, 421 (referred to).

As to carelessness as a bar to relief, see 32 A. S. 384-388.

As to duress, see Kerr's Cyc. C. C. § 1569 ajid note.

As to fraud, see Kerr's Cyc. C. C. §§ 1571, 1574 and notes.

As to many niiscellanenus matters as to contracts, src^ note
§ 1549. ante.

As to menace, see Kerr's C.vc. C. C. S 1570 and noti^

As to misreprc.seiitatiiins, see Kerr's Cyc. C. C. § 1568 and
note.

As to mistake, see Kerr's Cyc. C. C. § 1576-1579 and notes.

As to rescission of contract, see Kerr's Cyc. C. C. 8 1689 and
note.

As to undue iiitUunce, see Kerr's Cyc. C. C. § 1575 and note.

Kerr's C. C. — 28 865



§§ 1568, 1569 CIVIL, CODE. [Div.III,Pt.II.

§ 1568. WHEN DEEMED TO HAVE BEEN OBTAINED BY
FRAUD, ETC. Consent is "deemed to have been obtained
tbrougb one of the causes mentioned in the last section only
when it would not have been given had such cause not
existed.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 92 pars, annotation.

82 C. 351, 399, 16 A. S. 137, 23 P. 16, 28 (construed and applied
with other sections); 85 C. 11, 30, 20 A. S. 197, 24 P. 707, 711,
9 Li. 376 (construed and applied with other sections); 130 C.
194, 198, 62 P. 398 (construed and applied with other sections);
138 C. 668, 671, 72 P. 149, 150 (construed and applied with other
sections); 145 C. 441, 448, 79 P. 420 (referred to); 147 C. 439,
444, 82 P. 45 (referred to in considering contract to exchange
land for oil stock); 151 C. 630, 635, 91 P. 526 (consent — contract
cannot be rescinded when).

As to action to recover for false representations, see 18 A. S.
555, 563.

As to instruction of jury on questions of misrepresentation,
see Kerr's Cyc. C. C. § 1574 and note.

As to expression of opinion as fraud, see 35 L. 417, 441.

As to knowledge of insolvency and non-disclosure of same
affecting contract, see 33 A. D. 707.

As to liability for misrepresentations made directly to com-
plaining party, see 85 A. S. 368.

As to liability for recommendations for credit, see 25 A. S.
447, 451.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to right of action for false representations, see 1 L. 774;
2 L. 743; 4 L. 158; 6 L. 219; 11 L. 196.

As to right to rely upon representations made to affect con-
tract as a basis for a charge of fraud, see 37 L. 593, 615.

As to suppression of facts, see Kerr's Cyc. C. C. § 1710 and
note.

As to what statements made at time of contract do not
amount to misrepresentation, see 15 A. R. 382.

§1569. DURESS, WHAT. Duress consists in:

1. Unlawful confiueiiieut of the person of the party, or of
the husband or wife of such party, or of an ancestor, descend-
ant, or adopted child of such party, husband, or wife;

2. Unlawful detention of the property of any such person;
or,

866



I



Tit.r.ch.rri.] menace, what is. 51570

3. ('oiitiiH-iiiciit of Mich person, Isn^fiil in form, but frandu-
leutly obtained, or fraudulently iiuidt' unjustly hiiiassinii or
oppressive.

Ili-Htory: Enacted :Maroh 21, 1S7L'.

Set' Kerr's Cyc. C. C. for 51 pars, annotation.

93 C. 452. 455. 27 A. S. 207. 28 P. 1068. 1069 (construed and
applied with §1670); 98 C. 557. 575, 33 P. 633 (construed and
applied): 107 C. 303, 308 (erroneously cited for S1369), 40 P.
558. 560 (correct citation); 130 C. 194. 198. 62 P. 398 (construed
and applied with other sections); 7 C. A. 49, 53, 93 P. 400, 402
(applied); 13 F. 789, 791 (payment under valid assessment is
not payment under duress).

As to contracts secured by throats of prosecution of relative,
see 26 L. 48, 66.

As to duress by threat or menace, see Kerr's Cyc. C. C. S 1570
and note.

As to duress sufficient to avoid marriage contract, see note
43 L. 814-819; 40 A. S. 174.

As to equitable relief against contract obtained by duress, see
C L. 491.

As to many miscellaneous matters as to contracts, see note
S 1549, ante.

As to menace, see Kerr's Cyc. C. C. S 1570 and note.

As to recovery of money paid under contract obtained by
duress, see 6 L. 491.

As to rescission of contract on groimd of duress, see Kerr's
Cyc. C. C. i 1689 and note; 6 L. 491.

As to what constitutes duriss. see 7 L. 551; 9 !>. 631; 26 A.
D. 374, 378.

As to when duress is sufficient to avoid contract of wife, see
32 A. S. 185.

§ 1570. MENACE, >ViIAT. Menace consists in a threat;

1. Of such duress as is specified in subdivisions one and
three of the last section ;

2. Of unlawful and violent injury to the person or property
of any such person as is si)ecified in the last section; or.

3. Of injury to the character of any such person.

illHtory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 40 pars, annotation.

93 C. 452. 455. 27 A. S. 207, 28 P. 1068. 1069 (construed and
applied with other sections); (C. May 8. 189.5), 40 P. 488. 489
(constrtied and applied); 130 C. 194, 198, 62 P. 398 (construed
and apiiliid with other sections).

867



§§ 1571, 1572 CIVIL CODE. [Div.III,Pt.II.

As to contract procured by threat of prosecution of a rela-
tive, see 26 L. 48-66.

As to contracts obtained by duress other than duress by threat
or menace, see Kerr's Cyc. C. C. § 1569 and note.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1571. FRAUD, ACTUAL OR CONSTRUCTIVE. Fraud is
either actual or constructive.

History: Enacted March 21, 1872.

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

78 C. 221, 225, 20 P. 404 (referred to); 82 C. 351, 383, 16 A. S.
137, 23 P. 16, 23 (construed and applied); 85 C. 11, 30, 20 A. S.
197, 24 P. 707, 711, 9 L. 376 (construed and applied).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1572. ACTUAL. FRAUD, WHAT. 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 con-
nivance, 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.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 105 pars, annotation.

56 C. 350, 365 (construed with § 1573); 65 C. 397, 402, 4 P. 385,
388 (construed and applied with §1573); 75 C. 525, 527, 7 A. S.
189, 17 P. 689, 690 (construed and applied); 77 C. 22, 26, 18 P.
791, 793 (construed and applied with §1710); 78 C. 126, 131, 12
A. S. 29, 20 P. 382, 384 (construed and applied); 78 C. 221, 225,
20 P. 404 (construed and applied with § 1571); 79 C. 313, 316, 21
P. 758 (construed and applied); 82 C. 351, 383, 16 A, S. 137, 23

868



Tit.I.ch.III.] ACTUAL FitArn. 5 157L'

p. 16, 113 (construed and applied); 84 C. 646, 649. 24 P. 597. 598
(construed and ai)plled); S8 C. 473. 477. U6 P. 35'J. 353 (constru<'d
and applied); 88 C, 660, 565. 26 P. 367. 368 (construed and ap- *
plied): 93 C. 329. 359. 28 P. 1053. 1059 (construed ami api)ll.'d):
96 C. 433. 440. 31 P. 35.S. 360 (construed and applied witli i 1710);
103 C. 37. 42. 36 P. 1036 (construed and applied i; 122 C 5so. 581.
68 A. S. 70. 55 P. 406 (con.strued and applied »: 127 C. 632. 535.
78 A. S. 81. 59 P. 991 ( innstru.d and aijplled): 131 C. 472. 477.
178, 63 P. 775 (construed and applie<l); 133 C. 441, 443, 65 P. S9«
(construed and api)lled); 134 C. 662. 663. 66 P. 847 (construed
and applied with } 1573); 69 P. 696. 698 (construed and apjilled);
13S C. 668. 671. 72 P. 149. 150 (construed and applied with other
sections); 141 C. 56. 62. 74 P. 433 (construed and applied with
other sections); 141 C. 386. 390. 74 P. 1029 (construed and
applied): 144 C. 305. 312. 77 P. 954 (construed and applied*; 147
C. 739. 743. 82 P. 436 (i)roniise made without any Intention of
performlnK It constitutes fraud); 152 C. 14S. 157 (subd. 4 applied
hut erroneously cited as S1752. .suhd. 4). 92 P. 78. 82 (correct
citation); 152 C. 383. 387. 92 P. KUl (applied); 152 C. 772. 775.
93 P. 1018 (applied— tindlniar as false representation not necessary
under proper state of pleadings): 1 C. A. 492. 493, 82 P. 445
i< ase of aKKravated fraud i: 7 C. A. 504. 509. 94 P. 850. 862
■ lijectlonable evidence ».

As to actions for false r<presentatl<ins, see 20 A. D. 626. I^
A. S. 556.

As to carelessness tin har to relief from fraud, see 32 A. S.
384.

As to concealment of material fact as fraud, see 4 K. 158; 5 I..
128; brief 45 I^ 818.

As to deceit, see Kerr's Cy«'. ('. C. il 1709-1711 and notes.

As to duress or fr.'uid as d<-fense to action for bri-ach of prom-
ise of nuirrhiK^. "ce 40 A. S. 174.

As to efTect of representiiiK thlnK!< sold to bo crnod. hoc IS
L. 795.

As to expression of opinion as frjiviil, see 3."i I.. 117-441, 37 I*
604.

As to false promises as fraud. s.<- 4 I., l.'is.

As to fraud In case of relation of conlldenc<r and trust between
parties, see 11 L. 65.

As to fraud In obtainltiK cr.-dit. see 14 I* 264.

As to fraud pending niarrlaKe contract, se.' "-f

63 I>. 92.

As to fraud to defeat d..w. r. see S U SI 4.

As to Imprisonment for debt in case of fraud, se.' 3 4 \^
634-642. 671.

As to Intent In concealment of Insolvency as ground of fraud.
see 14 L. 264.

As to liability of corporation ottii .rs f.ir •ompany's fraud,
see 28 L. 421-427.

869



§ 1573 CIVIL CODE. [Div.III,Pt.II.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to misrepresentations, see Kerr's Cyc. C. C. § 1568 and
note.

As to necessity of moral turpitude in legal fraud, see brief
61 L. 178.

As to recovery of judgment on note and mortgage as bar
to action for fraud in obtaining loan, see "effect of election
of remedies in case of fraudulent purchase," 15 L. 89, 90.

As to recriminatory fraud as defense, see 31 A. S. 727.

As to relief from judgment rendered on publication of proc-
ess, see 16 L. 361.

As to replevin for property obtained by fraudulent purchase,
see 21 L.. 206-209.

As to representations to commercial agencies, see 14 L. 264.

As to rescinding contract on ground of fraud, see 2 L. 153.

As to right to rely upon representations made to effect con-
tract as basis for charge of fraud, see 37 L. 593-615.

As to right to recover injuries suffered from acting upon
false representations, see 88 A. D. 442.

As to rights of parties to fraudulent or illegal transaction,
see 34 A. D. 735.

As to silence when deemed fraudulent, see 1 L. 742.

As to what constitutes actionable deceit, see brief 61 L. 305.

As to what constitutes fraud, see 4 L. 158; 6 L. 149.

As to what is sufficient proof of fraud, see 65 A. D. 157.

As to when deed is void for fraud at law, see 93 A. D. 596.

Insolvency, see Kerr's Cyc. C. C. § 1568 and note.

§ 1573. CONSTRUCTIVE FRAUD. Constructive fraud con-
sists:

1. In any breach of duty which, without an actually fraudu-
lent intent, gains an advantage to the person in fault, or any
one claiming under him, by misleading another to his preju-
dice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares
to be fraudulent, without respect to actual fraud.

History: Enacted March 21, 1S72.

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

56 C. 350, 365 (construed with §1572); 65 C. 397, 402, 4 P.
385, 388 (construed and applied with §1572); 91 C. 15, 18, 27
P. 599, 600 (construed and applied); 134 C. 662, 663, 66 P. 847
(construed and applied).

As to constructive fraud, see 4 L. 158.

870



Tit.I,ch.III.] UNDUE INFLUENCE. §§ 1574, I575

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to misrepresentations, see Kerr's Cyc. C. C. ^1568 and
note.

As to parol evidence to prove constructive fraud, see Kerr's
Cyc. C. C. § 1572 and note.

§ 1574. ACTUAL FRAUD A QUESTION OF FACT. Actual
fraud is always a question of fact.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 35 pars, annotation.
119 C. 429, 434, 51 P. 630, 632 (construed and applied).
As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1575. UNDUE INFLUENCE, WHAT. Undue Influence

consists:

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.

History: Enacted March 21, 1872.

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

56 C. 89, 93 (construed and applied); 79 C. 313, 316, 21 P.
758 (construed and applied); 90 C. 323, 336, 27 P. 186, 190 (con-
strued and applied); 94 C. 642, 646, 30 P. 4 (construed and
applied with other sections); 97 C. 259, 262, 32 P. 171 (con-
strued and applied with other sections); 103 C. 97, 102, 37 P.
189 (construed and applied with other sections); 134 C. 170,
174, 66 P. 231 (construed and applied); 135 C. 316, 318, 67 P.
778 (construed and applied); 141 C. 56, 62, 74 P. 433 (construed
and applied with other sections); 4 C. A. 371, 376, 88 P. 294
(instance of deed obtained by undue influence.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to undue influence in wills, see Kerr's Cyc. C. C. § 1272
and note.

As to what is undue influence and its effect, see 2 L. 668;
8 L. 261.

871



§§1576,1577 CIVIL CODE. [Div.III,Pt.II.

§ 1576. MISTAKE, WHAT. Mistake may be either of fact
or law.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 87 pars, annotation.

96 C. (i55, 659. 31 A. S. 247, 31 P. 623, 624 (construed and
applied with § 473 C. C. P.).

As to avoidance of contracts on ground of mutual mistake
of facts, see 45 A. D. 631-634.

As to carelessness as bar to relief, see 32 A. S. 384-388.

As to change of decision of state court as an unconstitutional
impairment of contract, see 16 L. 646.

As to correction of clerical errors, see 9 Paige Ch. (N. Y.)

4 L. ed. 661.

As to ignorance of right as ground for relief, see 55 A. S.
494-520.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to mistake generally, see 6 L. 835-838.

As to mistake as ground for injunction against judgment,
see 30 L. 786-802.

As to mistake as ground for relief in equity, see 4 L. 483;

5 L. 152; 12 L. 273.

As to possession taken and held through ignorance or mis-
take, see 24 A. S. 388-390.

As to power of court of equity to reform contracts upon
ground of mistake, see 13 F. 256-259.

As to reformation of contracts upon ground of mistake, etc.,
see 65 A. S. 481-522.

As to relief against judgment obtained by default through
mistake of attorney, see 36 A. S. 635.

As to relief on ground, of mistake or fraud, see 7 A. D. 567.

As to reformation of instruments for mistake, see 55 A. S.
590.

As to rescission of contracts in equity for mistake of fact,
see 55 A. S. 590.

As to want of evidence to prove mistake and reform instru-
ments, see 55 A. S. 590.



§ 1577. MISTAKE OF FACT. 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

872



Tit.I.ch.III.] MISTAKE OF LAW. § 1578

contract, which does not exist, or in the past existence of
such a thing, which has not existed.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 19 pars, annotation.

68 C. 611, 616, 10 P. 179, 182 (referred to); 119 C. 429, 435,
436, 51 P. 630, 632 (construed and applied); 119 C. 463, 468, 51
P. 704 (construed and applied with other sections) ; 54 P. 80,
83 (construed and applied); 122 C. 98, 100, 54 P. 528 (construed
and applied); 131 C. 635, 639, 63 P. 1005 (construed and applied);
134 C. 381, 384, 66 P. 474 (construed and applied); 138 C. 668,
671, 72 P. 149, 150 (construed and applied with other sections);
144 C. 104, 110, 77 P. 828 (construed and applied); 150 C. 21,
27, 87 P. 1029 (applied — carelessness in failing to read deed);
150 C. 370, 373, 89 P. 109 (distinction between "unconscious



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