SECTION 555. Actual fraud is a question of fact.

556. Undue influence.

557. Mistake of fact or of law.

558. Mistake of fact.

559. Mistake of law.

560. Mistake of foreign laws.

561. Mistake through wilful ignorance.

562. Mutuality of consent.

563. Communication of consent.

564. Mode of communicating acceptance of proposal.

565. When communication of acceptance concludes contract.

566. Acceptance by performance of conditions.

567. Acceptance must be absolute.

568. Revocation of proposal.

569. Revocation, how made.

570. Ratification of contract void for want of consent.

tion of

by accept

545. A voluntary acceptance of the benefit of a trans- Assump action is equivalent to a consent to all the obligations obligation arising from it, so far as the facts are or ought to be known ance by the person accepting.'

1 Bennett v. Judson, 21 N. Y., 238.

546. The consent of the parties must be 1. Free;

2. Mutual;

3. Communicated by each to the other.

benefits.

Essentials

of consent.

when void

able."

547. A consent which is not free or mutual is never- Consent, theless not absolutely void, but voidable only at the option of the party prejudiced or those claiming under him.

§ 548. An apparent consent is not real or free when Apparent obtained through

1. Duress;

2. Menace;

consent procured by duress,

menace, fraud, &c.

3. Fraud;

4. Undue influence;

5. Mistake; or,

6. Accident.

549. Consent is deemed to have been obtained through Id.
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.

Duress, what.

550. 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 child' of such party, husband, or wife;*

2. Unlawful detention of the property of any such person ;*

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

4. Taking an oppressive and unconscientious advantage of the necessities of the party."

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; Sasportas v. Jennings, 1 Bay, 470; see also Nelson v. Suddarth, 1 Hen. & Mumf., 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. Bingham, 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 circumstances, 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, supra.

Breck v. Cole, 4 Sandf., 88; Bowes v. Heaps, 3 Ves. & B., 119; Wood v. Abrey, 3 Madd., 423; Gould v. Okeden, 4 Bro. P. C., 198; see Cockshot v. Bennet, 2 T R., 763; Barnardiston v. Lingood, 2 Atk., 133; Thornhill v. Evans, id., 330; Walmsley v. Booth, id., 28, 29; Berney v. Pitt, 2 Vern., 14; Nott v. Hill, id., 27; Wiseman v. Beake, id., 121; Roche v. O'Brien, 1 Ball & B., 337, 359; Bromley v. Smith, 26 Beav., 664; 5 Jur. (N. S.), 837.

§ 551. The menace must be

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

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

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

'Whitefield v. Longfellow, 13 Maine, 146.

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

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 de-
finition of duress, and was no doubt 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. Maningham, 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 well be considered
an adequate compensation for all injuries to property
or character, and it was on this ground that they were
not regarded as duress. (Bac. Abr., Duress, A.) The
remedy now existing is less effective, nor is money
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 sus-
tain a contract. These views are further sustained by
Story Cont., § 398; 2 Stark. Ev., 482; Chitt. Cont.,
208.

§ 552. Fraud is either actual or constructive.

553. Actual fraud consists

1. In any artifice by which one obtains an unconscientious advantage over another;1

2. In any unconscientious use of a power or advantage obtained through a personal confidence voluntarily accepted.2

Story Eq. Jur., § 187; Gale v. Gale, 19 Barb., 251;
Jeremy Eq. Jur., 358; Pothier Obl., n. 28; Gardner v.
Heartt, 3 Denio, 236.

"Gardner v. Ogden, 22 N. Y., 327; McQueen v. Farquhar

11 Ves., 479; Story Eq. Jur., §§ 255, 257; see Clarke v.
Parker, 19 Ves., 18.

Menace.

Fraud, actu

al or constructive.

Actual

fraud.

Construc

tive fraud.

Actual fraud is a question of fact.

Unduc influence.

Mistake of fact or of law.

§ 554. Constructive fraud consists

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

1

1 Bulkley v. Wilford, 1 Clark & Fin., 102, 177, 181.

2. In such acts or omissions as the law specially declares to be fraudulent, without respect to actual fraud.

§ 555. Actual' fraud is always a question of fact."

'Dunham v. Waterman, 17 N. Y., 21; Wilson v. For syth, 24 Barb., 105.

22 R. S., 137.

556. Undue influence consists in the use, by one occupying a relation of personal confidence toward another,' of the slightest oppression, authority, deception, suppression of fact, or artifice, or of excessive solicitation, to procure an advantage from the latter.

1 Sears v. Shafer, 6 N. Y., 272.

4

2 Bury v. Oppenheim, 26 Beav., 594; Nottidge v. Prince,
2 Giff., 246; Slocum v. Marshall, 2 Wash. C. C., 400,
Taylor v. Taylor, 8 How. U. S., 183.

Anderson v. Elsworth, 3 Giff., 154; Cane v. Allen, 2
Dow, 294.

'See Gibson v. Joyes, 6 Ves., 266; Maitland v. Irving,
15 Sim., 437.

§ 557. Mistake may be either of fact or of law.'

'As to mistake of fact there is no question. Mistake of law has been often declared to be no ground for relief at law or equity. See Champlin v. Laytin, 18 Wend., 417; Storrs v. Parker, 6 Johns. Ch., 166; Lyon v. Richmond, 2 id., 61; Story Eq. Jur., §§ 111-139. But the contrary view has been taken by judges of high authority. See Champlin v. Laytin, 18 Wend., 422; Stone v. Godfrey, 5 De G. M. & G., 90; Broughton v. Hutt, 3 De G. & J., 501; Evants v. Strode, 11 Ohio, 480.

8558. Mistake of fact is either

1. An unconscious ignorance' or forgetfulness of a fact past or present, material to the contract;

2. Belief in the present existence of that which does not exist, or in the past existence of that which has not existed, the thing believed being material to the contract. Bell v. Gardiner, 4 M. & G., 10; as limited by M'Dan

Mistake of

fact.

law.

§ 559. Mistake of law constitutes a mistake, within the Mistake of meaning of this article, only when it arises from

1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law;'

2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.

1 Many v. Beekman Iron Co., 9 Paige, 188; Hall v. Reed,
2 Barb. Ch., 501.

§ 560. Mistake of foreign laws is mistake of fact.'

'Bank of Chillicothe v. Dodge, 8 Barb., 233.

Mistako of foreign laws

561. A mistake made through willful ignorance,' or by Mistake neglecting a legal duty,' does not invalidate the consent.

'Kelly v. Solari, 9 M. & W., 54.

United States Bank v. Bank of Georgia, 10 Wheat., 343

through willful ignorance.

of consent.

§ 562. Consent is not mutual, unless the parties all agree Mutuality upon the same thing in the same sense. But in certain cases defined by the chapter on INTERPRETATION, they are deemed so to agree without regard to the fact.

cation of

§ 563. Consent can be communicated with effect, only Communi by some act or omission by which the person contracting consent.