consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance. § 1515. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and re fusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it. CHAPTER IV. ACCORD AND SATISFACTION. SECTION 1521. Accord, what. 1522. Effect of accord. 1523. Satisfaction, what. 1524. Accord of liquidated debt. § 1521. An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. [In effect July 1, 1874.] § 1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed. § 1523. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction. § 1524. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing, for that purpose, though without any new consideration, extinguishes the obligation. [In effect July 1, 1874.] CHAPTER V. NOVATION. SECTION 1530. Novation, what. 1531. Modes of novation. 1532. Novation a contract. 1533. Rescission of novation. § 1530. Novation is the substitution of a new obligation for an existing one. 49 Cal. 50. § 1531. Novation is made: 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. § 1532. Novation is made by contract, and is subject to all the rules concerning contracts in general. 54 Cal. 338. § 1533. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance if the debtor prevents such person from complying with the order, or from fulfilling the obligation; or if, at the time the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor; or if, before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. [In effect July 1, 1874.] CHAPTER VI. RELEASE. SECTION 1541. Obligation extinguished by release. 1542. Certain claims not affected by general release. 1543. Release of several joint debtors. § 1541. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. $1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. [In effect July 1, 1874.] § 1543. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him. PART II. CONTRACTS. TITLE I. NATURE OF A CONTRACT, §§ 1549-1615. V. EXTINCTION OF CONTRACTS, §§ 1682-1701. TITLE I. NATURE OF A CONTRACT. CHAPTER I. DEFINITION, §§ 1549-1550. V. CONSIDERATION, §§ 1605-1615. CHAPTER I. DEFINITION. SECTION 1549. Contract, what. 1550. Essential elements of contract. § 1549. A CONTRACT is an agreement to do or not to do a certain thing. § 1550. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. CHAPTER II. PARTIES. SECTION 1556. Who may contract. 1557. Minors, &c. 1558. Identification of parties necessary. 1559. When contract for benefit of third person may be enforced. § 1556. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. § 1557. Minors and persons of unsound mind have only such capacity as is defined by Part I. of Division I. of this Code. § 1558. 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. $ 1559. A contract, made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it. CHAPTER III. CONSENT. BECTION 1565. Essentials of consent. 1566. Consent, when voidable. 1567. Apparent consent, when not free. 1568. When deemed to have been obtained by fraud, &c. 1569. Duress, what. 1570. Menace, what. 1571. Fraud, actual or constructive. 1572. Actual fraud, what. 1573. Constructive fraud. 1574. Actual fraud a question of fact. 1575. Undue influence, what. 1576. Mistake, what. 1577. Mistake of fact. 1578. Mistake of law. 1579. Mistake of foreign laws. 1580. Mutuality of consent. 1581. Communication of consent. |