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2. Their consent;

3. A lawful object; and,

4. A sufficient cause or consideration.

Code La., 1772, 1758, 1759; Code Napoleon, 1108.
The word "object" has been selected, after much reflec-
tion, as a more correct word for the purpose here in-
tended, than "subject" or "subject matter."

Who may contract.

Minors, &c.

Identifica

tion of parties necessary.

When con

tract for

benefit of third per

CHAPTER II.

PARTIES.

SECTION 746. Who may contract.

747. Minors, &c.

748. Identification of parties necessary.

749. When contract for benefit of third person may be enforced.

S746. All persons are capable of contracting, except minors, persons of unsound mind. and persons deprived of civil rights.

The disabilities of married women are entirely removed by section 79.

$ 747. Minors, and persons of unsound mind, have only such capacity as is defined by Part I of the First Division of this Code.

$ 748. 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.

Webster v. Ela, 5 N. H., 540.

S749. A contract, made expressly for the benefit of a third person, may be enforced by him at any

son may be time before the parties thereto rescind it.

enforced.

Burr v. Beers, 24 N. Y., 178; Lawrence v. Fox, 20 id., 268; Scott v. Pilkington, 15 Abb., 280; Steman v. Harrison, 42 Penn. St., 49. The rule stated in these cases was limited to promises in which the purpose was expressed, in Hoffman v. Schwaebe, 33 Barb., 194.

CHAPTER III.

CONSENT.

SECTION 750. Essentials of consent.

751. Consent, when voidable.

752. Apparent consent, when not free.

753. When deemed to have been obtained by fraud, &c.

754. Duress, what.

755. Menace, what.

756. Fraud, actual or constructive.

757. Actual fraud, what.

758. Constructive fraud.

759. Actual fraud a question of fact.

760. Undue influence, what

761. Mistake, what.

762. Mistake of fact.

763. Mistake of law.

764. Mistake of foreign laws.

765. Mutuality of consent.

766. Communication of consent.

767. Mode of communicating acceptance of proposal.

768. When communication deemed complete.

769. Acceptance by performance of conditions.

770. Acceptance must be absolute.

771. Revocation of proposal.

772. Revocation, how made.

773. Ratification of contract, void for want of consent.

774. Assumption of obligation by acceptance of benefits.

$750. The consent of the parties to a contract Essentials must be:

1. Free;

2. Mutual; and,

3. Communicated by each to the other."

1 Getman v. Getman, 1 Barb. Ch., 499; Burnet v. Bisco,
4 Johns., 235.
"Communication of consent is indispensable (Bentley v.

Columbian Ins. Co., 17 N. Y., 421; Heubach v.
Mollman, 2 Duer, 256, 257; Fiedler v. Tucker, 13
How. Pr, 9; Mozley v. Tinkler, 1 Cr. M. & R.,
692). But it need not be verbally expressed. An
understanding between the parties is sufficient
(Houghton v. Adams, 18 Barb. 545).

of consent

when void.

$ 751. A consent which is not free is nevertheless Consent, not absolutely void, but may be rescinded by the able.

Apparent consent, when not free.

When deemed to

have been

obtained by

fraud, &c.

Duress, what.

parties, in the manner prescribed by the chapter on RESCISSION.

Murray v. Mann, 2 Exch., 538; Gage v. Parker, 25 Barb.,

141

$752. An apparent consent is not real or free when obtained through:

1. Duress;

2. Menace;

3. Fraud;

4. Undue influence; or,

5. Mistake.

Menace has usually been classed with duress, and will
be found to be treated under that head in the digests.
It is, however, clearly a separate branch of the subject.
Accident and surprise are included under the head of
Mistake.

$753. Consent is deemed to have been obtained through one of the causes mentioned in the last section, only when it would not have been given had such cause not existed.

Bronson v. Wiman, 8 N. Y., 188, 189; Flight v. Booth, 1 Bing. N. C., 376; Code La., 1819; Faure v. Martin, 7 N. Y., 219. It is not essential that the fraud, &c., should be the sole inducement to consent (Shaw v. Stine, 8 Bosw., 157; Addington v. Allen, 11 Wend., 381; Clarke v. Dickson, 6 C. B. [N. S.], 453).

S754. Duress consists in:

1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child3 of such party, husband or wife ;*

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

3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive."

1

Foshay v. Ferguson, 5 Hill, 154; Bac. Abr., Duress, A.

If the confinement is lawful there is no duress (Bates v. Butler, 46 Me., 387).

* Code La., 1847; Code Napoleon, 1113; Bac. Abr., Duress,
B. See McClintock v. Cummins, 3 McLean, 158; Eadie
v. Slimmon, 26 N. Y., 9.

3 New, but in accordance with the title on ADOPTION.
• Code Napoleon, 1113.

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This is denied (Skeate v. Beale, 11 Ad. & El., 983;
Atlee v. Backhouse, 3 M. & W., 650). But it was
originally so held in privy council (Assize, 5 Year
Book, fol. 72, pl. 14), and it has been so decided in
this country (Collins v. Westbury, 2 Bay, 211; Sas-
portas v. Jennings, 1 Bay, 470; see also Nelson v.
Suddarth, 1 Hen. & Munf., 350), with the approval
of BRONSON, J. (Foshay v. Ferguson, 5 Hill, 158).
It is universally held that money paid under such
duress may be recovered back (Harmony v. Bing-
ham, 12 N. Y., 99; Oates v. Hudson, 6 Exch., 346;
Atlee v. Backhouse, 3 M. & W., 642); and it is very
difficult to see why, under precisely similar circum-
stances, a note given instead of money should be
enforced.

Strong v. Grannis, 26 Barb., 122; Watkins v. Baird, 6
Mass., 511; Richardson v. Duncan, 3 N. H., 508.
'Severance v. Kimball, 8 N. H., 386; Richardson v. Dun-
can, 3 id., 508.

$755. Menace consists in a threat:

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

2. Of unlawful and violent injury to the person' or property of any such person as is specified in the last section; or,

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

'Eadie v. Slimmon, 26 N. Y., 9; Whitefield v. Longfel

low, 13 Maine, 146; compare Biffin v. Bignell, 7
H. & N., 877.

2 Co. Inst., 483; Bac. Abr., Duress, A.

3

See Foshay v. Ferguson, 5 Hill, 158; see contra, Bac,

Abr., Duress, A. See note below.

This species of threat is not usually included in the
definition of duress, and was doubtless not so treated
under the old common law, when a libeler could be
made to rot in jail until he paid damages, while
neither the judgment creditor nor any one else was
bound to find him food or drink (Dive v. Maning-
ham, 1 Plowd., 68); and when some debtors did
actually starve to death. With such a savage
remedy for the recovery of pecuniary damages,
they might be considered an adequate satisfaction for
injuries to property or character, and it was on this

Menace, what.

Fraud, actual or constructive.

Actual

fraud, what.

ground that such injuries were not regarded as duress. (Bac. Abr., Duress, A.) The remedy now existing is less effective, even if money were considered equivalent to character. By statute, it is now a criminal offense to send threatening letters for the purpose of extorting money, and that which is thus treated as a crime ought not to be allowed to sustain a contract. These views are further sustained by Story Cont., § 398; 2 Stark. Ev., 482; Chitt. Cont, 208. And see Eadie v. Slimmon, 26 N. Y., 9, in which some weight is given to the influence of a threat involving the loss of a husband's character.

$756. Fraud is either actual or constructive.
Conkey v. Bond, 34 Bårb., 286.

$757. 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 connivance, with intent to deceives 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;a

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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;9

3. The suppression of that which is true, by one having knowledge or belief of the fact;10

4. A promise, made without any intention of performing it; or,

5. Any other act fitted to deceive.

2

This definition is not to be considered as covering all

varieties of fraud, but only such fraud as vitiates the consent of a party to a contract.

Story (Eq. Jur., § 187), defines fraud as a "trick, device or artifice," &c. In Gardner v. Heartt (3 Denio, 236), it is called "a deceitful practice or willful device." It is at least doubtful whether any peculiar "artifice" is necessary to constitute fraud. In Nichols v. Pinner (18 N. Y.; 295), and Nichols v. Michael (23 N. Y., 264), SELDEN, J., expressed his opinion that there must be something of the kind, in addition to an intent to defraud, in order to constitute fraud in a

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