A Treatise on the Rescission of Contracts and Cancellation of Written Instruments, Τόμος 1

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Vernon law book Company, 1916 - 1779 σελίδες
 

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South Dakota
23
Substitution of One Instrument for Another
28
Same Georgia
29
Conspiracy Bribery and Perjury
30
Same Alabama 19 Same Louisiana
31
Frauds by Agents and Other Third Persons
32
9
33
CHAPTER II
36
Same Misrepresenting Purport or Contents of Instrument
56
Misreading Instrument
57
Same Examination of Public Records
116
Same Constructive Notice and Facts Suggesting Inquiry
117
Circumstances Excusing Failure to Investigate
118
Effect of Fiduciary Relations Between the Parties
119
One Party Possessing Special Expert or Technical Knowl edge
120
Party Relying on His Own Investigation
121
Investigation Prevented or Thwarted by Other Party
122
Degree of Care and Vigilance Required
123
Rejection of Rule Requiring Ordinary Prudence and Care
124
Relative Situation of Parties as to Mental and Business Capacity
125
Statements Palpably False Incredible or Impossible
126
Fraudulent Concealment of Material Facts
133
Same Circumstances Imposing Duty to Disclose
138
Same When Silence is Justifiable
141
Caveat Emptor
145
Concealment Coupled with Efforts to Prevent Discovery 63 Concealment Coupled with False Representations
147
Concealment of Latent Defects
149
Acquiescence in SelfDeception of Other Party
152
Concealment by Purchaser of Property
153
Same Concealment Accompanied by Fraud or Falsehood
156
CHAPTER III
159
BLACK RESC
177
Representations as to Financial Ability
257
Representations as to Financial Standing of Third Persons
261
Falsity of Representations
266
Ambiguous and Misleading Statements
269
Knowledge of Falsity of Representations
273
Same Falsity in Express or Implied Assertion of Knowl edge
274
Same Ratification of Contract
275
Restitution or Restoration of Consideration
276
Intoxication as Ground of Rescission
277
Degree or Measure of Intoxication
278
Intoxication Voluntary or Induced by Other Party
279
Habitual Drunkenness
280
Voidability of Contract Ratification or Disaffirmance
281
Same Imputed or Constructive Knowledge of Falsity
282
Capacity of Infants to Contract
283
Validity of Infants Contracts in General
284
Same Statements Made Recklessly Without Knowledge of Falsity
285
Contracts for Services
286
Same Recovery for Services on Avoidance of Contract
287
Infants Engaging in Business
288
Infants as Members of Partnerships
289
Loans and Advances
290
Bills and Notes
291
Same Good Faith and Honest Belief in Statements Made 107 Same Reasonable Ground to Believe Statements True
292
Appointment of Agent or Attorney
293
Contracts of Release Compromise or Settlement
294
Policies of Life Insurance
295
Intention to Deceive or Mislead
296
Contracts for Necessaries
297
Effect of Representations in Actually Deceiving Party
298
Same Services of Attorneys at Law
299
Reliance Upon Representations
300
Estoppel Against Infant
301
Representations as Inducement to Contract
306
Necessity of Actual Loss or Injury
309
Duty to Investigate Truth of Representations
317
Contracts Violative of Statutes
318
Monopolies and Restraints of Trade
319
Ultra Vires Contracts
320
Compounding Crime or Stifling Prosecution
321
Same Decisions Repudiating or Modifying Rule
322
Fraudulent Transfers and Schemes to Defraud
323
Contracts Violating Sunday Laws
324
Usurious Contracts
325
Same Extent of Investigation Necessary
326
Bankruptcy as Anticipatory Breach of Contract
327
Executory and Option Contracts of Sale
328
Conditional Sales
329
Relation of Landlord and Tenant
330
Election as to Rescission VOLUME 2
331
Executed and Executory Contracts
332
Contracts with Government or Municipal Corporations
333
334 Maritime Contracts
334
Contracts of Brokerage and Agency
335
Same Agency for Definite Time Same Revocation by Operation of Law or for Cause
336
Same Notice of Revocation of Agency
338
Same Reimbursement or Compensation of Agent
339
Same Repudiation or Rescission by Agent
340
Same Agency or Power Coupled with an Interest
341
Contracts of Suretyship and Guaranty
342
Partnerships
343
Contract or Engagement to Marry
344
Marriage as Executed Contract
345
Subscriptions for Corporate Stock Release or Withdrawal
346
Same Rescission for Fraud or False Representations
347
Same Representations by Officers Agents and Promoters
348
Same False Statements in Prospectus
349
Same False Statements as to Other Subscriptions
350
Same Promissory Representations and Statements of Opin
351
Same Effect of Bankruptcy or Insolvency of Company
352
Subscriptions to Charitable Philanthropic and Business En terprises
353
Contracts for Work or Hire of Services
354
Tenure of Office Public and Private
355
Resolutions and Contracts of Directors of Corporations
356
Contract or Notice of Rescission may be Rescinded
357
CHAPTER IV
359
Fraud Deception and Undue Influence
361
Want of Independent Advice
362
Deed of Trust Testamentary in Character
363
Trusts in Bank Deposits
364
Revocation by Consent of All Parties
365
Resignation or Repudiation by Trustee
366
Termination of Trust by Failure of Beneficiaries
367
Antenuptial Agreements
368
Inadvertence
369
License Granted Upon Consideration
370
Licensee Expending Money and Labor
371
Same Divergent Doctrines of Law and Equity
372
Same Express and Implied Licenses
373
License for Permanent Structures or Improvements
374
License Coupled with an Interest
375
License for Right of
376
Mining Licenses
377
Use of Premises for Advertising Purposes
378
Compensation to Licensee on Revocation
379
Tickets of Admission to Theaters and Other Places of Amusement
380
Licenses Under Patent and Copyright Laws
381
Right of Rescission in General
382
Misreading or Misrepresenting Instrument Want of Care and Prudence on Part of Releasor
383
Same Inability of Releasor to Read or Understand
385
Representations as to Existence of Cause of Action
386
Promises and Representations as to Future Events
387
Mental and Physical Condition of Releasor
388
Personal Injury Cases Same Reliance on Opinion of Physician
389
Same Mistake as to Nature or Extent of Injuries Settlement and Compromise of Litigation
391
Settlement and Division of Estates
393
Settlements Between Trustees and Beneficiaries
394
Remedy Against Fraud at Law and in Equity
395
Restoration or Tender of Consideration Received
396
Ratification and Estoppel
397
Fraud ai 398 Right of Rescission or Cancellation in General Fraud and False Representations
398
Mistaken Expectation as to Future Events
399
Substitution of Instruments
400
Duty of Care and Prudence
401
Mistake
402
Duress and Undue Influence
403
Mistake in Matter of
404
Same Mistake or Ignorance as to Partys Legal Rights
405
Same Mistake as to Legal Effect of Instrument
407
Same Mistake of Law Induced by Other Party
410
Same Mistake of Law as Element of Fraud
412
Same Mutual Mistake of
413
Same Laws of Foreign State or Country
414
Loss or Injury Resulting from Mistake
415
Evidence to Prove Mistake
416
Accident or Surprise as Ground for Reliet
417
Right to Rescind in General
418
WANT OR FAILURE OF CONSIDERATION Section 157 Original Want of Consideration
419
Same As to Title Interest or Estate
420
Misrepresentation or Concealment of Incumbrances
421
Same Existence of Prior Contract to Convey
422
Failure of Consideration
423
Same As to Value of Property
424
Same As to Quality Condition and Improvements
425
Partial Failure of Consideration
426
Failure of Consideration from Impossibility of Performance
427
Application of Rule of Caveat Emptor
428
Certainty and Materiality of Defect
429
Offer of Doubtful Title
430
Allowance of Reasonable Time to Make Title
431
Vendor Disabling Himself to Convey
432
Defects Cured or Curable Before Conveyance
433
Failure of Consideration Resulting from Operation of Law or from Change in the Law 162 Instrument Becoming Functus Officio by Performance of ...
433
Defects Cured After Notice of Rescission but Before Decree
434
Disturbance of Purchaser or Danger of Eviction
435
Failure of Title as to Part of Land Conveyed
436
Grounds for Equitable Relief
437
Waiver Estoppel or Default of Purchaser
438
Rescission by Vendor for NonPayment of Purchase Money
439
Same Deferred and Installment Payments
440
Rights and Duties of Parties on Rescission
441
Exchange of Properties
442
vi
443
Rescission or Modification by Agreement of Parties 407 Rescission for Cause 408 Fraud and Misrepresentations
444
Application of Rule of Caveat Emptor
445
Fraud and False Representations
446
Announcements or Representations by Persons Conducting
447
Chilling Bids or Stifling Competition
448
Unfair Combinations Among Bidders
449
Employment of Puffers
450
Mistake
451
Irregularities Errors and Defects
452
Inadequacy of Price
453
Remedies Before and After Confirmation of Sale
454
Laches and Estoppel
455
Rescission by Agreement or Consent
456
Grounds for Rescission in General
457
False Representations or Concealment
458
Premises Untenantable or Unfit for
459
Destruction or Deterioration of Premises
460
Impossibility of Performance
461
Abandonment or Repudiation
462
Mistake
463
Breaches of Contract by Landlord
464
Breaches of Contract by Tenant
465
DEFICIENCY IN QUANTITY OR QUALITY 177 Right of Rescission in General 178 Rule of Caveat Emptor 179 Redhibitory Defects 180 Deficienc...
466
Sale of Mines or Mining Property
467
Mining Leases
468
Same NonExistence or Exhaustion of Minerals
469
Sales by Sample
470
Delay Failure to Operate or Abandonment by Lessee
471
Remedy at Law or in Equity
472
Licenses to Mine
473
Time to Rescind Laches
474
Rescission by Agreement of Parties
475
Rescission by Insurance Company
476
Sale With All Faults
477
Inspection or Testing to Determine Quality
478
Jurisdiction of Actions for Rescission
479
Breach of Warranty
480
Notice for Cancellation
481
Same Sellers Fraud or Knowledge of Unsoundness 187 Same Agreement for Return if Defective
482
Repayment of Unearned Premium on Cancellation
483
Acts Constituting Surrender and Acceptance
492
Validity of Surrender
493
Operation and Effect of Surrender
494
Repayment or Recovery on Surrender
495
Abandonment by Insured
496
Essentials of Valid Gift
497
Allowance for Tare Tret Leakage etc 194 Offer or Opportunity to Make Good Defect
498
Same Warranty Against Future Defect or Failure 184 5 Fraud ocetkurn it Defectiver Failure
499
Revocability in General
500
Same Breach of Conditions
501
Acceptance and Use of Defective Article
502
Same Ingratitude of Donee
503
CHAPTER VIII
504
Gift to Fiduciary or Trustee
505
Gifts Between Parent and Child
506
Deposit of Money in Bank to Credit of Another
507
Revocation by Mutual Consent
508
Gifts Causa Mortis
509
Same Survival of Donor and Revocation
510
Burden of Proof and Evidence
511
Validity and Effect of Reservation
512
Mode of Rescission Under Reserved Right
513
Notice of Rescission
514
Stipulation Limiting Time for Rescission or Return
515
Mutual or Unilateral Right of Rescission
516
Contingencies Giving Right to Rescind
517
Building and Construction Contracts
518
Agreement to Take Back Unsold Goods
519
Rescission for Unsatisfactory Performance
520
Right to Rescind by Subsequent Agreement
521
Agreement for Rescission on Conditions
522
Consideration
523
Parol Rescission of Written Contract
524
Consent of Parties
525
Implied Consent or Acquiescence
526
Assent or Acquiescence Inferred from Unexplained Delay
527
Acts and Conduct Constituting Rescission
528
Same Offer and Acceptance
529
Slame Substitution of New Contract
530
Same Resuming Possession of Goods Sold
531
Same Abandonment of Rights
532
Same Default or Nonperformance on Both Sides
533
Evidence of Rescission
534
Consequences and Effects of Rescission
535
Reasonable Promptness Required
536
Rule as to Persons Under Disabilities
537
Inability to Perform
538
Insolvency of Purchaser
539
Same Diligence Required in Inspection or Examination
540
What Constitutes Laches
541
Same Sales of Personal Property
542
Impossibility of Performance
543
Circumstances Explaining or Excusing Delay
544
Change in Circumstances or in Value of Property
545
Absence of Loss or Prejudice from Delay
546
Same Destruction or Perishing of SubjectMatter 210 Effect of Partys Disabling Himself to Perform
547
Premature Attempt to Rescind
548
Sale of SubjectMatter to Third Party
549
Creditors
550
Heirs and Representatives
551
Parties Jointly Interested
552
Breach of Covenant or Condition in General
553
Party Cannot Take Advantage of His Own Neglect or De fault
554
Parties in Pari Delicto
555
Same Defrauding Creditors
556
Same Inequality of Turpitude
557
CONDITIONS PRECEDENT AND ACTS CONSTITUTING RE SCISSION 558 Existence of Sufficient Grounds for Rescission
558
Selecting Ground for Rescission Motives Immaterial
559
Necessity of Assent or Acquiescence
560
Election to Rescind or Affirm
561
Election of Other Remedy
562
Election Once Made is Final
563
Same Conditions Subsequent Promise of Future Action 214 NonPayment of Consideration
564
Payment or Delivery in Installments
565
Necessity of Tender Where Vendor Unable to Make Title
566
Actual or Threatened Loss or Injury as Condition Precedent
567
Demand for Performance Putting Party in Default
568
Notice of Rescission
569
Same Effect of Previous Defaults or Forbearance
570
Failure of Punctual Performance Time of the Essence
571
Notice Stipulated for in Contract
572
Same Failure to Deliver or Perform at Time Stipulated
574
Service or Delivery of Notice
575
Institution of Suit as Equivalent to Notice
576
Acts Constituting or Evidencing Rescission
577
Same Suit to Rescind or to Recover Property
578
Same Regaining or Accepting Possession of Property
579
Same Unreasonable Delay in Delivery or Performance 219 Same Waiver or Extension of Time
580
Same Penalty Fixed for Delay
581
Same Refusal to Perform Demands Inconsistent with
582
Contract
583
CHAPTER IX
583
General Rule 584 Separation of Beneficial and Onerous Portions of Contract
584
Separable or Divisible Contracts
585
Delivery or Performance in Installments
586
Part of Property Sold by Purchaser
587
Option for or Acceptance of Partial Rescission
588
Power to Decree Partial Rescission
589
Waiver of Right to Rescind
590
Knowledge of Rights Essential to Valid Waiver
591
Contemporary Knowledge of Fraud Mistake or Defect
592
Freedom from Duress Control or Disability
593
Recognition of Contract as Subsisting
594
Accepting and Retaining Benefits
595
Waiver of Right to Rescind by Acts or Assertions of Owner ship
596
Same Contracts for Sale of Land
597
Same Sale of Property or Offer to Sell
598
Same Use Change of Condition Impairment or Destruc tion of Subject
599
Same Possession or Use for Purpose of Testing
600
Making Payments
601
Duress of Goods 230 Taking Advantage of Financial Necessities
602
Demand or Acceptance of Payment or Security
603
Same Waiver of Default or Delay in Payment
604
Permitting Continuance of Work Under Contract
605
Acceptance of Partial Faulty or Insufficient Performance
606
Lacbes as Importing Waiver
607
Estoppel by Declarations or Conduct
608
Estoppel by Negligence or Inaction
609
Duress by Threats
610
Same Intention to Ratify
611
Affirmance by Suing on Contract
612
Compromise Settlement or Further Negotiations
613
Effect of Waiver or Ratification
614
Evidence Question for Jury
615
Restoration of Former Status in General
616
Necessity of Tender or Restoration of Property
617
Where Restoration is Impossible
618
Instituting or Threatening Civil Suits or Foreclosures 233 Duress of Imprisonment
619
Property Sold or Hypothecated to Third Person
620
Threats of Arrest or Criminal Prosecution
621
Exception as to Property Entirely Worthless
622
Effect of Refusal to Accept Return of Property
623
To Whom Restoration or Tender Should be Made
624
Prosecution of Husband Wife or Relatives
625
Mode Sufficiency and Extent of Restoration
626
Payment or Tender of Value in Lieu of Specific Restoration
627
Holding Property Subject to Sellers Demand or Order
628
Resale of Goods by Buyer for Sellers Account
629
Reconveyance of Land
630
Restoration of Possession of Land
631
CHAPTER X
632
Liability for Waste or Deterioration of Property
633
Accounting for Rents or Rental Value
634
Allowance for Cost of Keeping and Expense of Restoration
635
Allowance for Improvements and Repairs
636
Allowance for Taxes and Incumbrances Paid
637
General Rule
638
Contracts for Benefit of Third Persons
639
Bona Fide Purchasers for Value 641 Same Sales of Personal Property
641
Assignee of PurchaseMoney Notes
642
ACTIONS OR SUITS FOR RESCISSION OR CANCELLATION 643 Jurisdiction of Equity
643
Same Discretion of Court
644
Adequate Remedy at
645
Same Action for Fraud or Deceit
646
Same Defense to Action on Contract or Instrument
647
Same Pendency of Proceedings at
648
Same Insolvency of Defendant
649
Cancellation of Instruments
650
Same Void Instruments
651
Same Contracts of Insurance
652
Applicability of Statute of Limitations
653
Laches Barring Relief
654
247
655
BLACK RESC
657
661 Subsequent and Intermediate Purchasers
661
Trustees and Beneficiaries
662
Heirs and Personal Representatives
663
CHAPTER XXXVIII
664
Allegations of Fraud or False Representations
665
Allegation of Duress or Undue Influence
666
Allegation of Mental Incompetence
667
Allegation of Mistake
668
Alleging Defects of Title
669
Setting Out or Describing Instrument
670
Showing Promptness and Diligence
671
CHAPTER XI
672
Frame of Bill and Prayer for Relief
673
Plea Answer or Counterclaim
674
INSANITY AND INTOXICATION 254 Insanity as Ground for Rescission 255 Contracts and Deeds Voidable or Void 256 Liability for Necessaries a...
675
Presumptions and Burden of Proof
676
Same Fraud Duress and Undue Influence
677
Same Want of Mental Competence
678
Same Knowledge or Notice Acquiescence or Laches
679
Issues Proof and Variance
680
Admissibility of Evidence
681
Weight and Sulficiency of Evidence
682
Same Fraud and Mistake
683
Same Effect of Lapse of Time
684
General Principles of Granting Relief
685
Decree Ordering Cancellation
686
Decree Ordering Reconveyance
687
Recovery of Money Paid and Interest
688
Adjusting All Rights and Doing Complete Equity
689
Relief Granted Where Rescission Legally Impossible
690
Relief to Plaintiff on Refusing Rescission
691
Conditional or Alternative Relief
692
Granting Necessary Additional Relief
693
Decreeing a Lien on Land
694
Judgment for Damages in Addition to Rescission
695
Relief to Defendant
696
Same Restoration of Money or Property
697
Decree on Dismissal of Bill
698
Costs
699
In General
700
Revesting of Title
701
Right to Possession and Disposal of SubjectMatter
702
Recovery or Repayment of Consideration
703
Action on Rescinded Contract
704
Rights of Action Based on Rescission
705
Revival or Renewal of Contract
706
TABLE OF CASES CITED Page 1589
721
Same Misrepresentations as to
764
Ratification
767
Disaffirmance or Rescission
770
Who may Rescind or Avoid
772
Same Adult Contracting with Infant Is Bound
774
Time for Rescinding or Disaffirming During Minority 308 Same After Attaining Majority
778
Partial Avoidance or Disaffirmance
780
Restoration of Property or Consideration Received
781
Same Property Lost Sold or Dissipated
788
Effect of Avoidance
789
CHAPTER XIII
793
Same Sale for Delivery in Installments 413 Conditional Sales
829
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Σελίδα 24 - 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 contract, which does not exist, or in the past existence of such a thing, which has not existed.
Σελίδα 24 - ... 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.
Σελίδα 228 - There must be a misstatement of an existing fact, but the state of a man's mind is as much a fact as the state of his digestion.
Σελίδα 543 - ... there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.
Σελίδα 372 - Ignorantia juris haud excusat; but in that maxim the word 'jus' is used in the sense of denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact ; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be...
Σελίδα 710 - A contract ultra vires being unlawful and void not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money, parted with on the faith of the unlawful contract, to be recovered back, or compensation to be made for it.
Σελίδα 26 - Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: (1) he must rescind promptly, upon discovering the facts which entitle him to rescind...
Σελίδα 478 - ... where from the nature of the contract it appears that the parties must from the beginning have known...
Σελίδα 668 - A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them;217 provided, that these things have been actually furnished to him or to his family.218 § 37.
Σελίδα 433 - No principle of the common law has been better established, or more often affirmed, both In this country and In England, than that In sales of personal property, in the absence of express warranty, where the buyer has an opportunity to Inspect the commodity, and the seller Is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies.

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