The Law of Contracts, Volumen 1

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W.H. Anderson Company, 1920 - 7808 páginas
 

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Índice

Contract at modern law
43
CHAPTER II
49
35 Classification of contracts at common law
50
36 Origin of general theory of contract
51
37 General nature of obligation
52
38 Parties to obligation
54
Definite character of acts involved in obligation
55
41 Obligation arising out of agreement as contract
56
43 Community of intention
57
44 Intent to affect legal relations of parties thereto
58
46 Effect of modern theory on common law classification
59
Quasicontract
60
CHAPTER III
61
Parol contracts
64
51 Unilateral contracts
65
Executed and executory contracts
69
Place of executed contract in law
70
55 Nomenclature of the law
73
CHAPTER IV
74
57 Basis of distinction between contract and tort
75
58 Distinction between contract and tort in case of common carriers
77
In case of telegraph companies
78
60 In case of innkeepers
79
62 In case of physician attorney etc
80
Construction contracts
81
66 Statutory duties accessory to contractual relations
82
Waiver of tort
83
68 Contract distinguished from will
84
69 Contract distinguished from recital of fact
85
EXCLUDING PARTIES
85
CHAPTER V
86
Agreement essential element of contract
89
71 Motives or benefits ns substitute for agreement
90
72 Custom as substitute for agreement
92
Offer and acceptance
94
7f Nature of offerMust purport creation of legal liability
95
Declarations of intention
100
78 Declarations of desire or hope
104
Offers in jest
105
81 Offers under mental agitation
107
83 Undisclosed terms and mental reservations
110
84 Information or invitation to negotiate
112
8 Illustrations of offers to negotiate
113
86 Illustrations of offers contemplating legal liability
116
87 Necessity of complete terms
118
88 Incomplete terms
119
89 Terms to be settled by future negotiations
121
90 Terms to be settled at election of one party
126
91 Terms supplied by specific extrinsic reference
128
92 Terms supplied by implication of law
130
93 Terms supplied by construction
133
94 Method for determining terms omitted from contract
134
95 Indefinite and uncertain offers
135
Uncertainty as to consideration
137
97 Uncertainty as to subjectmatter
138
98 Uncertainty as to time
142
99 Requisite degree of certainty
143
Terms made certain by specific extrinsic reference
145
Terms made certain by principles of construction
148
Effect of performance of indefinite covenant
149
Effect of waiver of indefinite covenant
151
Effect of indefinite covenant upon contract
153
Uncertainty in equity and at law
154
Quasicontractual right of recovery under indefinite contract
155
108 Form of offerExpress offer
156
Offer by acts
159
Communication of offerNecessity
160
Communication of offer to third party
162
Sufficiency of communicationStandardized communication
164
cient
166
114 Contracts with common carriersActual communication requisite
173
115 Contracts with common carriersEffect of statutory provisions
175
Necessity of communication of offer in rewards
176
117 Termination of offer 178
178
111 Kffect of simple gratuitous promise not to revoke
179
Revocation at auctions
181
Revocation of orders
182
Value as term of contract
186
Discharge of rights under offer for value
187
Offer under seal
190
Effect of attempt to revoke offer under seal
192
Offers made irrevocable by statute
193
Revocation of offer to be accepted by doing act
194
Illustrations of revocation of offer to be accepted by doing act
199
What constitutes revocationRevocation by words
203
Revocation by acts
204
Offer to general public
205
Rejection of offerWhat constitutes
207
Rejection of offerEffect
208
Lapse of offer by expiration of timeTime not fixed by offer
209
Lapse of offer for future act
211
Time fixed by offer
212
Construction of provisions of offer fixing time
213
What is reasonable time for offer
214
Extension of time of offer 216
216
Contracts by correspondenceAcceptance of offer open for certain time
217
Lapse of offer by death or insanity of offeror
219
Offer by terms to be accepted after death of offeror
220
Lapse by death of offeree
221
What constitutes acceptanceIntention to accept
224
Necessity of communicating acceptanceOffer to be accepted by promise
225
Offer to be accepted by doing actEffect of communicating accept ance
227
Necessity of communicating acceptanceOffer to be accepted by act
229
Specific illustrationsContracts of guaranty
231
Orders for shipment of goods
233
Subscriptions
236
and notice
237
Crossoffers
243
Acceptance must correspond to offer
250
Variance as to price
256
Addition of gratuitous promise to acceptance
263
Offer using words intended but concerning 9ubjectmatter not
268
Waiver of prescribed form of acceptance
270
Offers for act construed as offers for promise
280
Who can accept offerOffer to definite person
288
Contracts by correspondenceCommunication of offer
296
204 Lapse after mailing acceptance
301
Contracts by correspondenceCommunication other than to adver sary party
302
208 When communication by mail or telegraph is properTheories
303
What is proper sending by mail or telegraph
308
Contracts by correspondenceEffcct of receipt of letter or telegram
309
Contract by telephone
310
Effcct of intending to reduce contract to writing
311
Place at which contract is made
317
CHAPTER VI
319
217 Definition and nature of fraud
320
218 Definition and nature of misrepresentation
324
219 Definition and nature of mistake
326
Definition and nature of nondisclosure
328
Effect of making existence of fact a term of contract
330
vii
338
Fraud as to identity or existence of subjectmatter
339
Fraud as to identity of adversary party
340
Distinction between identity of person and qualities or character istics
341
227 Fraud as to terms of oral contract
343
Fraud in executionExistence of written contract
344
230 Written instrument represented as identical with prior contract
347
231 Negligence as affecting fraud in the executionParty unable to read or prevented from reading
348
232 Party reads contract
350
Contract held valid
354
Relations of special trust and confidence
357
Rights of bona fide holder of negotiable contract
358
237 Effect of fraud of third person 351
359
238 Fraud in execution as making contract voidable
361
Restitution not condition precedent
363
Reformation for fraud in execution
365
CHAPTER VIII
369
Misrepresentation as to contents of instrument
370
Misrepresentation as to identity of adversary party
371
Negligence as affecting a misrepresentation in the execution
372
Negligence as affecting misrepresentation as to other essential cle ment
374
24 Effect of misrepresentation as to essential element
375
Nature of relief
376
CHAPTER IX
377
252 Fact opinion and evidence distinguished
378
f253 Conscious ignoranceMistake discovered before execution
379
254 Forgetfulness as mistake
382
Change of position
383
256 Mutuality of mistake
385
Materiality of mistake
386
Mistake as to rates fixed by statute
387
Materiality of mistake as to adversary party
388
Mistake as to identity of adversary party
389
Mistake as to existence of subjectmatter or consideration
391
Mistake or misunderstanding as to identity of subjectmatter or con sideration
394
3 Mistake as to area
395
Ambiguous offer
396
Mistake in duplicates of written contract
399
Offer using words not intended
400
Mistake in transmission by telegraph
401
tended
403
Miscalculations
405
Mistake as to contents of written contract
409
271 Negligence as affecting mistake in execution
410
Excuses for omission to read
414
Mistake as to legal effect
416
274 Misunderstanding as to termsOral contract
417
Effect of negligence other than in execution
419
276 Ratification and laches
423
Nature of relief
425
Rights arising on performance
426
CHAPTER X
427
Advantage taken of known mistake
428
CHAPTER XI
433
PARTY MAKING FALSE STATEMENT PAQE
434
Fraud in the Inducement i representations 281 Fraud in the inducementFalse representation
435
Fraud committed by acts
436
Partial disclosure
438
286 Fraud affecting written contracts
439
Fraud affecting contracts within the Statute of Frauds
440
Special statutory provisions as to fraudulent representations
441
Promise without intention of keeping itPromise treated as fraud
464
299 Promise not treated as fraud
468
Threat without intention of keeping it
469
Sales on creditIntent not to pay
470
ValueParties not on equal footing
476
Illustrations of material representations
482
311 Materiality of promise
489
Statements of facts which it is ones duty to know
497
Statements to commercial agencies
504
Standard for determining existence of fraud
510
Right to rely where means of knowledge not equal
522
Effect of investigation defeated by fraud
528
By whom false representation can be made
533
Fraud of agent acting for his principal
537
Advantage taken of false statement by other who is not agent
538
Action of deceit
542
Effect on contract of fraud in the inducement
544
342 Informal rescission at lawRecovery of value of performance
547
Compromise or release obtained by fraud
548
345 Formal rescission in equity
550
Rescission of contract under seal for fraud in the inducementStat utory provisions
552
Rescission in equity of instrument conveying title to realty
554
Rescission in equity of negotiable instrument
556
3oO Rescission in equity of simple nonnegotiable instrument
557
351 Evidence of fraud in suit for rescission
560
Duty to place adversary party in statu quo
561
Partial rescission impossible
567
354 RatificationIn general
568
What amounts to ratificationOperative acts
571
Knowledge of facts
572
Unequivocal acts
573
Fair opportunity to avoid
574
Effect of ratification
575
360 Laches
576
Equitable relief refused to party equally guilty
577
CHAPTER XII
579
Distinction between opinions and statements of fact
581
Falsity
583
Representation as to immaterial fact
585
Representation must mislead
587
Damage
589
Illustrations of innocent misrepresentation at modern law
590
By whom misrepresentation may be made
591
CHAPTER XIII
609
Effect of mistake on inducement
616
CHAPTER XIV
622
Special duty to disclose facts
629
Nondisclosure coupled with fraud
638
CHAPTER XV
653
Representations of foreign law
660
Mistake of law involving mistake of fact
668
Mistake of law causing gratuitous promise
671
Mistake of law coupled with inequitable conduct
672
404 Mistake as to foreign law
673
CHAPTER XVI
674
Constructive fraud limited to relations of trust and confidence
676
Nondisclosure in general as constructive fraud
678
Principal and agent
679
Attorney and client
682
Directors and officers of private corporationsTransactions with cor porations
686
411 Transactions with stockholders
692
Officers of public corporationsTransactions with corporations
694
413 Special statutory provisions
695
Contract between public corporation and private corporation of which public officer is stockholder
697
Contract between chief contractor and public officer
698
Contracts hetween corporations having common officers
699
Promoters of corporations
700
Partners
703
Coowners
705
420 Guardian and ward
711
Trustees
714
Executors and administrators
716
Husband and wife
718
Persons under contract to intermarry
719
425 Parent and child
722
426 Mortgagor and mortgagee
724
Debtor and creditor
726
Actual trust and confidence
727
FACTS WHICH MAY AMOUNT TO CONSTRUCTIVE FRAUD 429 Opinions
728
Price
730
Value
732
Mistake or fraud in the execution
735
Breach of contract
736
435 Remedies
737
Relation of undue influence to duress
743
Ancestor and heir
749
Religious advisers
755
Inadequacy of consideration
761
Inadequacy of consideration and circumstances of oppression
763
Inadequacy of consideration weakness of mind and nondisclosure
769
EFFECT
775
Standard for determining existence of duress
782
Duress of property
789
489 Effect of legality of threatened arrest
797
491 Breach of contract
803
Duress causing performance of legal dutyRestitution
809
By whom duress may be committed
813
500 To whom threats may be made
819
Ratification
825
Consideration moving from promisee but not to promisor 871
828
Assumpsit
832
Consideration oiler and acceptance and subjectmatter
839
Good and valuable considerationNature of good consideration
847
Statutory provisions
853
Consideration supporting several promises 801
861
Consideration and motive
868
theory
875
531 Consideration moving to promisor but not from promiseeAmerican theory
881
532 Consideration moving from two or morePromise to one
888
Consideration neither from promisee nor to promisor
889
536 Consideration moving from promisor to promisee
890
NECESSITY OF CONSIDERATION 537 Gratuitous executory promises
891
Gratuitous bailment
900
Gratuitous agency
903
Executed contracts
906
Consideration unnecessary by statute
907
ACQUISITION OR FORBEARANCE OF LEGAL RIGHTS AMOUNTING TO CONSIDERATION 542 Conveyance of rights in realty
909
Transfer of rights in personalty
913
Change of form of obligation t
916
545 Work and labor and support
917
Forbearance of legal rightsRelease of debts and contracts
918
Release of claims not arising in contract
920
Release of liens
921
Extension of time
922
Forbearance to sue
925
551 Dismissal of action
928
553 Abstinence from competition
930
554 Rights in decedents estate
931
Waiver of other rights arising out of contract
932
Waiver of other rights concerning property
933
Waiver of rights not involving property
934
558 Incurring obligations
937
SubscriptionsNecessity of consideration
940
560 SubscriptionsIncurring obligations
941
SubscriptionsPromises of other subscribers officers etc
943
562 SubscriptionsPromise to apply proceeds
945
APPARENT AND ILLUSORY CONSIDERATIONS 564 Apparent considerations which are nonexistent
946
565 The doctrine of mutuality
949
Mutual promises
955
568 Lack of mutualityGratuitous promises
962
Contract terminable at option of one party
970
f576 Equivalent to preliminary negotiation
978
Contract to supply wants or requirements of adversary party
984
Contract requiring test
991
586 Performance of legal duty resting on public officer
997
Held to constitute consideration
1005
Performance of preexisting contract with third person held not to
1012
Payment of all or part of liquidated undisputed debt due as consider
1022
Payment in manner different from original contract
1030
Written receipt in full
1038
Change in time of paying interest
1044
Performance of joint liability 47
1047
Reciprocal release of contractual rights
1048
Performance with uiodilication
1050
COMPROMISES 012 Compromise of disputed claimWhat constitutes dispute
1051
Dispute as to fact or law
1053
Sufficiency of genuine dispute
1054
015 Necessity of valid claim
1057
616 Necessity of good faith
1058
617 Reasonable ground for claim held unnecessary
1059
018 Reasonable ground for claim held necessary
1061
Necessity of mutual concessions
1062
Absence of reasonable ground equivalent to absence of good faith
1065
Effect of pendency of action
1067
Attitude of courts toward compromises
1071
Past considerationNature and effect
1073
Illustrations of past consideration
1074
Past services
1080
628 Past consideration held sufficient
1081
629 Past transaction resulting in liability
1082
Previous request
1086
Promise to perform prior duty and to perform in excess thereof
1087
Moral obligationPrior legal liability
1089
Moral obligationNo legal liabilityHeld to be consideration
1092
Moral obligationNo legal liabilityHeld no consideration
1094
ADEQUACY 635 Adequacy of considerationAt lawValue not fixed in money
1097
Inadequacy rendering contract unconscionable at law
1102
Adequacy of consideration in equity
1104
General effect of inadequacy of consideration in equity
1108
What constitutes inadequacy of consideration
1110
Adequacy as of date of transaction
1113
641 Unconscionable contracts inequityNature
1114
Unconscionable contracts in equityEffect
1120
NOMINAL CONSIDERATION 644 Nominal considerationNature
1123
645 Nominal consideration held sufficient
1124
Nominal consideration held insufficient
1126
Conclusive effect of recital of considerationSimple executory con
1128
PRESUMPTION OF CONSIDERATION
1134
PRESENT STANDING OF DOCTRINE OF CONSIDERATION
1141
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Página 781 - To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, 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.
Página 323 - Secondly, it may be apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses, and not under delusion, would make on the one hand, and as no honest and fair man would accept on the other...
Página 664 - if a party acting in ignorance *of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of compromise, a court of equity will relieve him from the effect of his mistake.
Página 909 - The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.
Página 69 - In considering this very interesting question we immediately ask ourselves, what is a contract? Is a grant a contract? A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing; such was the law under which the conveyance was made by the governor.
Página 643 - Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose...
Página 900 - Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.
Página 841 - A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.
Página 576 - Where a party desires to rescind upon the ground of mistake or fraud he must, upon the discovery of the facts, at once announce his purpose, and adhere to It. If he be silent, and continue to treat the property as his own. he will be held to have waived the objection, and will be conclusively bound by the contract, as If the mistake or fraud had not occurred.
Página 497 - ... are bound to state everything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge, the existence of which might in any degree affect the nature, or extent, or quality of the privileges and advantages which the prospectus holds out as inducements to take shares...

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