California.

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

. (page 77 of 156)
Online LibraryCaliforniaThe 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 text (page 77 of 156)
Font size
QR-code for this ebook


see 66 A. D. 509.

As to contracts obtained by duress, see Kerr's Cyc. C. C. § 1569
and note.

As to contracts obtained by undue influence, see Kerr's Cyc.
C. C. § 1575 and note.

As to contracts obtained through menace or threat, see Kerr's
Cyc. C. C. § 1570 and note.

As to contracts procuring pardons and commutation of sen-
tences, see 66 A. D. 511-513.

As to contracts for services void as against public policy, see
66 A. D. 506.

As to contracts relating to legal services with respect to
lobbying, see 66 A. D. 508.

As to contracts void as against public policy generally, see
3 L. 631; 6 L. 601-615; 8 L. 497; 12 L. 120.

As to defense against recovery of money collected, on ground
that it was on an unlawful contract or for illegal purposes, see
99 A. D. 61-68.

As to effect of failure to procure license for business on
validity of contracts thereon, see 16 L. 423-425.

As to elements of illegal contract, see 41 A. S. 900.
As to enforceability of contracts rendered void by statute, see
25 A. R. 674-678.

As to equitable interference with illegal contract, see 4 N. Y,
Ch. L. ed. 300.

As to granting of injunction in favor of party in pari delicto
against enforcement or otherwise proceeding upon illegal con-
tract, see 8 L. 842-850.

As to illegal contracts, see 16 A. S. 699.

As to injunction against enforcement of contract of wager,
see 48 L. 842-850.

909



§ 1667 CIVIL CODE. [Div.III.Pt.II.

As to invalidity of gambling- and wagering contracts, see 1
L. 141, 655; 3 L. 679; 5 L. 200; 7 L. 705; 12 L. 120.

As to legality of wagers and liability of stakeholder, see 18 L.
859-864.

As to liability of obligors on original contract as affected by
renewal or substituted contract which is void, see 33 L. 628-635.

As to lobbying contracts, see 66 A. D. 505-514.

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

As to iuiscf-lla:"^ ous contracts for services, such as marriage
brokerage contract, etc., see 66 A. D. 513, 514.

As to perpetuities, see Kerr's Cyc. C. C. § 715 and note.

As to recover:' of money paid on illegal contract, see 12 A. D.
385-387.

As to recovery of price of property sold for unlawful use, see
15 L. 834-837.

As to rewards for information, see Kerr's Cyc. C. C. § 184, note
pars. 4 et seq.

As to right of action to recover profits arising from illegal
business, see 30 A. R. 106-112.

As to right of expectant heir to transfer his expectancy, see
Kerr's Cyc. C. C. §§ 699, 700 and notes.

As to right to recovery of goods sold to smuggler, see 15 L.
534.

As to sales in aid of rebellion, see 15 L. 834.

As to sales in aid of lottery or gambling, see 15 L. 834-836.

As to sales of liquor for illegal use, see 15 L. 836.

As to services in procuring contracts for heads of depart-
ments, see 66 A. D. 507.

As to stock gambling contracts, see 59 A. S. 308.

As to stock-jobbing acts and other statutes and contracts
relating to dealing in futures, see 1 A. S. 752-756.

As to validity of contract for sale of office, see 5 L. 217.

As to validity of contract for transfer of parental authority
or responsibility, see 27 L. 56-61.

As to validity of contract to purchase office or official in-
fluence, see 4 L. 682.

As to validity of contracts to procure testimony, see 19 L.
371-373.

As to validity of sale by expectant heir of his expectant
estate, see 33 L. 266-287.

As to validity of transactions between an heir and his ancestor
relating to former's expectant estate, see 32 L. 595-602.

As to wagering contract for sale, see 1 A. S. 758-760.

As to wagers on elections, see 18 L. 859.

As to when party may enforce contract promotive of illegal
transactions, see 9 L. 506.

910



Tit. IV.] UNLAWFUL AND VOID. §§1668-1670

§1668. CERTAm CONTRACTS UNLAWFUL. All con-
tracts which have for their object, directly or indirectly, to
exempt any one from responsibility for his own fraud, or
wilful injury to the person or property of another, or viola-
tion of law, whether wilful or negligent, are against the
policy of the law.

History: Enacted March 21, 1872.

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

93 C. 452, 457, 27 A. S. 207, 28 P. 1068, 1070 (construed and

applied).

As to contracts by common carrier limiting liability to pas-
sengers or servants, see Kerr's Cyc. C. C. §§ 2174, 2175 and notes.

As to illegality of contracts obtained under threats of prose-
cution, see Kerr's Cyc. C. C. § 1584 and note.

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

As to validity of contracts by which employees waive right
to recover from employers for injuries which may be received
in the course of employment, see 58 A. R. 836-838; 3 A. S. 255-
257.

§1669. PENALTIES VOID (repealed).

History: Enacted March 21, 1872, repealed March 30, 1874,
Code Amdts. 1873-4, p. 242.

§1670. CONTRACT FIXING DAMAGES, VOID. Every
contract by which the amount of damage to be paid, or other
compensation to be made, for a breach of an obligation, is
determined in anticipation thereof, is to that extent void,
except as expressly provided in the next section.

History: Ti;nacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.
§1671) ; 77 C. 467, 472, 19 P. 872, 874 (construed and applied together
with 1671) ; 78 C. 606, 609, 21 P. 369, 370 (construed and applied with
§ 1671)- 78 C. 606, 609, 21 P. 369, 370 (construed and applied with
§ 1671)' 87 C. 443, 450, 22 A. S. 257, 25 P. 749, 751 (construed and
applied with other sections); 90 C. 78, 82, 27 P. 24, 25 (not
applicable to what contract); 90 C. 110, 119, 120, 25 A. S. 102. 27
P. 36 38 (construed and applied with §1671); 98 C. 1, 4. 8. 9.
32 P. 705 (construed and applied); 100 C. 75. 78, 34 P. 622 (con-
strued and applied with §1671); 114 C. 64, 66, 45 P. 1004

911



§ 1671 CIVIL CODE. [Div.III,Pt.II.

(referred to); 123 C. 1, 5, 21, 69- A. S. 17, 55 P. 713, 43 L. 199 (con-
strued and applied with other sections); 125 C. 563, 565, 567, 58
P. 130 (construed and applied with §1671); 135 C. 401, 404, 67
P. 499 (construed and applied with § 1671); 144 C. 494, 499, 77 P.
1040 (construed and applied with §1671); 4 C. A. 288, 290, 87
P. 1101 (applied to contract for sale of personal property).

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



§ 1671. EXCEPTIOH. The parties to a contract may agree
therein upon an amount which shall be presumed to be the
amount of damage sustained by a breach thereof, when, from
the nature of the case, it would be impracticable or extremely
difficult to fix the actual damage.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 81 pars, annotation.

66 C. 536, 538, 6 P. 417 (construed and applied); 75 C. 205,
209, 16 P. 890 (construed and applied with §1670); 77 C. 467,
472, 19 P. 872, 874 (construed and applied with other sections);
78 C. 606, 609, 21 P. 369, 370 (construed and applied with § 1670);
87 C. 443, 450, 22 A. S. 257, 25 P. 749, 751 (construed and applied
with other sections); 90 C. 78, 82, 27 P. 24, 25 (construed and
applied with §1670); 90 C. 110, 119, 120, 27 P. 36, 38, 5 A. S. 102
(construed and applied with §1670); 98 C. 1, 4, 8, 9, 32 P. 705
(construed and applied); 100 C. 75, 78, 34 P. 622 (construed and
applied); 110 C. 674, 680, 43 P. 388 (construed and applied);
123 C. 1, 5, 9, 69 A. S. 17, 55 P. 713, 43 L. 199 (construed and
applied with other sections); 125 C. 563, 566, 567, 58 P. 130 (con-
strued and applied); 135 C. 401, 405, 67 P. 499 (construed and
applied with §1670); 144 C. 494, 499, 500, 77 P. 1040 (construed
and applied with § 1670).

As to distinction between liquidated damages and penalty,
see 13 L. 671; also briefs 53 L. 124; 55 L. 276; 56 L. 170.

As to general rules as to measure of damages on breach of
contract, see 2 L. 766; 3 L. 587.

As to liquidated damages, see 30 A. R. 28-36; 27 A. S. 717.

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

As to measure of damages on breach of contract to convey
and purchase, see 4 L. 670; 27 A. S. 129.

As to when damages are liquidated, see 6 L. 555; 10 L. 826;
13 L. 671.

As to when sum named will be deemed liquidated damages,
and when penalty, see 66 A. D. 116.

912



Tit. IV.] RESTRAINT OF TRADE. §§ 1672-1674

§1672. RESTRAINTS UPON LEGAL PROCEEDINGS

(repealed).

History: Enacted March 21, 1872, repealed March 30, 1874,
Code Amdts. 1873-4, p. 242.

§1673. CONTRACT IN RESTRAINT OF TRADE, VOID.

Every contract by which any one is restrained from exer-
cising a lawful profession, trade, or business of any kind,
otherwise than is provided by the next two sections, is to
that extent void.

History: Enacted March 21, 1872.

31 P. 155 (construed and applied with other sections) ; 96 C.
510, 513, 516, 31 A. S. 242, 31 P. 581 (construed and applied with'
other sections); 101 C. 295, 298, 35 P. 995 (construed and applied
with §1674); 102 C. 506, 510, 36 P. 841 (construed and applied
with §§1674, 1675); 110 C. 150, 153, 52 A. S. 70, 42 P. 576 (con-
strued and applied with §1674); 110 C. 674, 679, 43 P. 388
(referred to); 115 C. 584, 604, 56 A. S. 119, 47 P. 482, 35 L. 309
(construed and applied); 118 C. 352, 357, 50 P. 662 (construed
and applied with §§ 1674, 1675); 124 C. 429, 431, 433, 434, 71 A. S.
94, 57 P. 468, 46 L. 142 (construed and applied with §§ 1674,
1675); 126 C. 176, 180, 56 P. 249, 58 P. 466 (construed and applied
with §1674); 145 C. 380, 387, 78 P. 879 (construed and applied
with §1674); 147 C. 115, 118; 81 P. 416, 109 A. S. 114 (applied to
contract respecting purchase of salt).

See Kerr's Cyc. C. C. § 1674 and note.

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

§1674. EXCEPTION IN FAVOR OF SALE OF GOOD-
WILL. One who sells the good-will of a business may agree
with the buyer to refrain from carrying on a similar busi-
ness within a specified county, city, or a part thereof, so
long as the buyer, or any person deriving title to the good-
will from him, carried on a like business therein.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 114 pars, annotation.

31 P. 155, 156; 96 C. 510, 513, 31 A. S. 242, 31 P. 581 (construed
and applied with other sections); 101 C. 295, 298, 35 P. 995 (con-
strued and applied with §1673); 102 C. 506, 510, 36 P. 841 (con-
strued and applied with §§ 1673, 1675); 106 C. 332, 336, 39 P. 628,

913



§ 1675 CIVIL CODE. [Div.III,Pt.n.

629 (construed and applied); 110 C. 150, 153, 52 A. S. 70, 42 P.
576 (construed and applied with §1673); 110 C. 674, 679, 43
P. 388 (referred to); 118 C. 352, 357, 50 P. 662 (construed and
applied with §§1673, 1675); 124 C. 429, 431, 433, 71 A. S. 94,
57 P. 468, 46 L. 142 (construed and applied with §§1673, 1675);
126 C. 176, 180, 181, 56 P. 249, 58 P. 466 (construed and applied
with §1674); 145 C. 380, 387, 78 P. 879 (construed and applied
with §1673); 147 C. 115, 118, 81 P. 416, 109 A. S. 114 (referred
to in construing- illegal contract respecting purchase of salt) ;
3 C. £.: 33Pi 337 85 P. 162 (construing valid contract omitting
words "similar basiness," of code).

As to combination in restraint of trade, see 41 A. S. 899.

As to contract in partial restraint as to time, see 1 L. 456; 4 L.
154; 8 L. 469; 11 L. 437.

As to contract in restraint of trade without limitation as to
territory, see 92 A. D. 755; 39 A. S. 465.

As to contracts in restraint of trade, see 7 A. D. 743-746; 92
A. D. 751-763; 35 A. R. 269-272; 1 A. S. 822; 41 A. S. 899; 3 L.
632; 11 L. 503.

As to contracts restraining use of secrets of trade, see 13 L.
652.

As to illegality of contracts creating monopolies, or trusts
generally, see 1 L. 456; 2 L. 33; 3 L. 632; 6 L. 457; 8 L. 500; 13
L. 770.

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

As to nature of nonopolies and illegal combinations to fix
prices, see 13 L. 770.

As to partnerships or corporations entered into in violation
of law and creating monopoly, see 48 A. S. 340.

As to stipulating liquidated damages, see Kerr's Cyc. C. C.
§ 1671 and note.

As to time, see 92 A. D. 754.

As to unlawful combinations between railroads, see 1 L.
849; 9 L. 690.

As to validity of contract in partial restraint of trade and
restraint as to locality, see 1 L. 456; 4 L. 454; 8 L. 469; 11 L.
437-503.

As to validity of contract of sale in restraint of trade without
limitation of place, see 22 L. 673.

As to what combinations constitute unlawful trusts, see 74
A. S. 235-273.

As to when contracts in restraint of trade are reasonable
and valid, see 32 A. S. 748.

§ 1675. EXCEPTION IX FAVOR OF PAKTXERSHIP AR-
RAKCrEMENTS. Partners may, upon or in anticipation of a

914



^j^ jy -J RESTRAINT OF MARRIAGE. § 1676

dissolution of the partnership, agree that none of them will
carry on a similar business within the same city or town
where the partnership business has been transacted, or
within a specified part thereof.

History: Enacted March 21, 1872.

10" C 506 510, 36 P. 841 (construed and applied with §§ 1673
1674)- 118 C. 352, 357, 50 P. 662 (construed and applied with
5 1673 1674)- 124 C. 429, 432. 71 A. S. 94, 57 P. 468, 46 L. ed
42 (Construed with other sections as to good will and restraint
of trade); 147 C. 115. 118, 81 P. 416, 109 A. S. 114 referred to in
construing illegal contract respecting purchase of salt).
See Kerr's Cyc. C. C. § 1674 and note.
As to many miscellaneous matters as to contracts, see note

§ 1549, ante.

§1676. CONTRACT IN RESTRAINT OF MARRIAGE,
VOID. Every contract in restraint of the marriage of any
person, other than a minor, is void.

History: Enacted March 21, 1872.
As to contract in restraint of marriage, see Kerr's Cyc.
CCS 710 and note. ^ .^

'as to many miscellaneous matters as to contracts, see note

§ 1549, ante.



915



I 1682 CIVIL CODE. [Div.III.Pt.II.

TITLE V.

EXTINCTION OP CONTRACTS.

Chapter I. Contracts, How Extinguished, § 1682.
II. Rescission, §§ 1688-1691.
III. Alteration and Cancelation, §§ 1697-1701.

CHAPTER I.

CONTRACTS, HOW EXTINGUISHED.

§ 1682. Contract, how extinguished.

§1682. CONTRACT, HOW EXTINGUISHED. A contract
may be extinguished in like manner with any other obliga-
tion, and also in the manner prescribed by this title.
History: Enacted March 21, 1872.

110 C. 259, 263, 42 P. 820 (construed and applied with other
sections).

As to conditions in restraint of marriage, see Kerr's Cyc.
C. C. § 710 and note.

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



916



Tit.V.ch.IL] PARTY RESCIND WHEN. §§ 1688, 1689



CHAPTER II.

RESCISSION.

§ 16S8. Rescission extinguishes contract.

§ 1689. When party may rescind.

§ 1690. When stipulations against right to rescind do not defeat it.

§ 1691. Rescission, how effected.

§1688. RESCISSION EXTINGUISHES CONTRACT. A

contract is extinguished by its rescission.

History: Enacted March 21, 1872.

66 C. 636, 639, 6 P. 737, 739 (construed and applied with § 1689)-,
93 C. 588, 595, 29 P. 226 (construed and applied); 1 C. A. 690, 694,
82 P. 1052 (basis of action to rescind contract).

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.

As to rescission of contracts, see full annotation Kerr's Cyc.
C. C. §§ 3406-3408 and notes.

§ 1689. WHEN PARTY MAY RESCIND. A party to a con-
tract may rescind the same in tlie following cases only:

1. If the consent of the party rescinding, or of any party
jointly contracting with him, was given by mistake, or ob-
tained through duress, menace, fraud, or undue influence,
exercised by or with the connivance of the party as to whom
he rescinds, or of any other party to the contract jointly
interested with such party;

2. If, through the fault of the party as to whom he rescinds,
the consideration for his obligation fails, in whole or in part;

3. If such consideration becomes entirely void from any
cause;

4. If such consideration, before it is rendered to him, fails
in a material respect, from any cause; or,

5. By consent of all the other parties.

History: Enacted March 21, 1872.

63 C. 575, 577 (construed and applied); 66 C. 636, 639, 6 P.
737, 739 (construed and applied with §1688); 70 C. 250, 254, 11
P. 643, 645 (construed and applied with §1691); 71 G. 428, 440,

917



§ 1690 CIVIL CODE. [Div.III,Pt.II.

12 P. 454, 460 (construed and applied with otlier sections); 78 C.
126, 134, 12 A. S. 29, 20 P. 382, 385 (construed and applied); 82
C. 351, 398, 16 A. S. 137, 23 P. 16, 28 (construed and applied with
other sections); 25 P'. 427, 429 (rescission can be had only in
cases prescribed by this section and in manner mentioned in
§1691); 83 C. 588, 594, 29 P. 226 (construed and applied); 85 C.
11, 31, 20 A. S. 197, 9 L. 376, 24 P. 707 (construed and applied with
other sections); 86 C. 248, 251, 21 A. S. 33, 24 P. 1018 (con-
strued and applied with other sections); 92 C. 33, 37, 27 P.
1098, JO*}*! (construed and applied with other sections); 93 C.
588, 594, 29 P. 220 (subd. 4 applied); 94 C. 362, 366, 28 A. S. 132,
29 P. 717 (construed and applied); 94 C. 642, 646, 30 P. 4, 5
(construed and applied with other sections); 98 C. 490, 499, 33 P.
550, 553 (construed and applied with §§499, 3406-3408); 114
C. 161, 167, 45 P. 1054, 46 P. 386 (construed and applied); 129 C.
68, 85, 58 P. 92, 61 P. 667 (construed and applied with other
sections); 129 C. 367, 372, 62 P. 39 (construed and applied); 62
P. 600, 601, 602 (construed and applied with §1691); 131 C.
530, 546, 63 P. 850, 64 P. 253 (construed and applied); 133 C.
441, 443, 444, 65 P. 894 (construed and applied with other sec-
tions); 134 C. 547, 548, 86 A. S. 294, 66 P. 730 (construed and
applied); 136 C. 631, 635, 69 P. 428 (construed and applied);
137 C. 286, 290, 70 P. 82, 83 (construed and applied); 138 C.
668, 672, 72 P. 149 (subd. 2 applied— refusal to pay mortgage);
146 C. 379, 390, 80 P. 234 (cited — rescission, how "accomplished,"
and how enforced); 146 C. 667, 671, 80 P. 1090 (subd. 2 applied —
defendant's refusal to go on with contract); 147 C. 739, 743, 82 P.
436 (subd. 1 applied — contract obtained by fraud — what promise
is fraudulent); 148 C. 357, 363, 83 P. 151, 113 A. S. 276, 3. L. N.
S. 908, 7 A. C. 541 (subd. 2 applied — sale on credit); 149 C. 117,
121, 85 P. 305 (applied to entire contract for partial failure
of consideration); 149 C. 667, 676, 87 P. 276 (ground for rescis-
sion must be alleged); 151 C. 630, 635, 91 P. 526 (applied with
other sections — misrepresentation as basis for rescission must
be material); 1 C. A. 690, 694, 82 P. 1052 (basis of action to
rescind contract).

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

As to rescission of contracts, see full annotation Kerr's Cyc.
C. C. §§ 3406-3408 and notes.

§1690. WHEIV STIPULATIOIVS AGAINST RIGHT TO
RESCIND DO NOT DEFEAT IT. A stipulation that errors
of description shall not avoid a contract, or shall be the sub-
ject of compensation, or both, does not take away the right
of rescission for fraud, nor for mistake, where such mistake

918



Tit.V.Ch.II.] RESCISSION, HOW MADE. § Iggi

is in a matter essential to the inducement of the contract,
and is not capable of exact and entire compensation.

History: Enacted March 21, 1872.

§ 1691. RESCISSION, HOW EFFECTED. Rescission, when
not effected by consent, can be accomplished only by the
use, on the part of the party rescinding, of reasonable dili-
gence to comply with the following rules:

1. He must rescind promptly, upon discovering the facts
which entitle him to rescind, if he is free from duress,
menace, undue influence, or disability, and is aware of his
right to rescind; and,

2. He must restore to the other party everything of value
which he has received from him under the contract; or must
offer to restore the same, upon condition that such party
shall do likewise, unless the latter is unable or positively
refuses to do so.

History: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held
unconstitutional, see history, § 4 ante.

54 C. 189, 190 (construed and applied); 70 C. 250, 254, 11 P. 643,
645 (construed and applied with § 1689); 71 C. 226, 229, 16 P. 772,
773 (construed and applied); 78 C. 389, 396, 398, 20 P. 868, 870, 871
(construed and applied); 85 C. 11, 31, 20 A. S. 197, 9 L. 376, 24
P. 707 (construed and applied with §1689); 85 C. 177, 190, 29
A. S. 128, 24 P. 729, 733 (construed and applied); 85 C. 522,
531, 20 A. S. 239, 24 P. 837, 838 (construed and applied); 86
C. 353, 361, 24 P. 1065, 1068 (construed and applied); 87 C. 49,
60, 25 P. 249, 252 (construed and applied); 25 P. 427, 429 (rescis-
sion can be had only in manner prescribed by this section);
92 C. 33, 37, 27 P. 1098, 1099 (construed and applied with other
sections); 96 C. 275, 282, 31 A. S. 201, 31 P. 290 (construed and
applied); 98 C. 490. 499, 33 P. 550, 553 (construed and applied
with other sections); 99 C. 223, 227, 33 P. 851 (construed and
applied); 99 C. 355, 357, 33 P. 1107 (construed and applied);
103 C. 287, 292, 35 P. 768, 37 P. 392 (construed and applied); 109 C.
417, 426, 42 P. 139 (construed and applied with §3407); 110 C.
374, 379, 42 P. 896 (construed and applied); 119 C. 260, 264, 51
P. 341 (construed and applied); 119 C. 646, 648, 51 P. 1083 (con-
strued and applied); 123 C. 1, 16, 69 A. S. 17, 55 P. 713, 43 L.
199 (construed and applied); 123 C. 634, 642, 69 A. S. 90, 56 P.
436 (construed and applied); 124 C. 264, 268, 56 P. 1042 (con-

919



§ 1691 CIVIL CODE. [Div.III,Pt.II.

strued and applied with §3407); 124 C. 542, 544, 57 P. 476 (con-
strued and applied); 129 C. 68, 85, 58 P. 92, 61 P. 667 (construed
and applied with other sections); 61 P. 1109, 1111 (subd. 2
applied — no rescission without offer to place defendant in statu
quo); 62 P. 600, 601, 602 (construed and applied with §1689);
130 C. 431, 433, 62 P. 749 (construed and applied with other
sections); 132 C. 278, 280, 64 P. 292 (construed and applied);
132 C. 516, 521, 64 P. 896 (construed and applied); 133 C. 441,
444, 6fi ,P. 894 (construed and applied with §1689 — executory
contract for sale of land); 142 C. 313, 320, 75 P. 899 (subd. 1
applied); 146 C. 379, 389, 390, 80 P. 234 (subd. 2 applied — ability
to restore identical property — substantial equity done between
parties is enough — rescission, how "accomplished," and how
enforced); 146 C. 667, 672, 80 P. 1090 (refusal to return money
received relieves party from necessity of offering to return or
to cancel contract); 147 C. 739, 743, 82 P. 436 (subd. 1 applied);
148 C. 539, 547, 83 P. 1000 (party must "rescind promptly"
though he is not required to restore that which is worthless) ;
151 C. 630, 633, 91 P. 526 (referred to); 151 C. 732, 739, 91 P. 593
(applied — exceptional case — impossibility of restitution — offer
to do equity, when sufficient); 152 C. 383, 392, 92 P. 1011 (placing
in statu quo, considerations governing) ; 1 C. A. 690, 694, 82 P.
1052 (basis of action to rescind contract); 2 C. A. 737, 744, 84
P. 232 (subd. 1 applied); 7 C. A. 387, 393 (placing in statu quo),
398 (no harm from delay when, in rescinding), 94 P. 393, 398.

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

As to rescission of contracts, see full annotation Kerr's Cyc.
C. C. §§ 3406-3408 and notes.



920



Tit.V,Ch.III.] VERBAL AND WRITTEN, HOW. §§1697,1698

CHAPTER III.

ALTERATION AND CANCELATION.

§ 1697. Alteration of verbal contracts.

§ 1698. Written contracts, how modified.

§ 1699. Extinction by cancelation, etc.

§ 1700. Extinction by unautliorized alteration.

§ 1701. Alteration of duplicate, not to prejudice.

§ 1697. ALTERATION OF TERBAL CONTRACTS. A con-
tract not in writing may be altered in any respect by con-
sent of the parties, in writing, without a new consideration,
and is extinguished thereby to the extent of the new altera-
tion.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 342.

110 C 259 263, 42 P. 820 (applied — new contract); 129 C. 301,
305 61 P 937 (erroneously cited as §1697 C. C. P.— has no
application to written contracts), 61 P. 937, 939 (correct
citation); 134 C. 26, 29, 66 P. 24 (cited); 69 P. 625, 628 (what
change made is material alteration).

As to alteration and cancelation of contracts, see full annota-
tion Kerr's Cyc. C. C. §§ 3412-3414 and notes.

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

§1698. AVRITTEN CONTRACTS, HOW MODIFIED. A



Online LibraryCaliforniaThe 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 text (page 77 of 156)