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." 'Foshay v. Ferguson, 5 Hill, 154; Bac. Abr., Duress, A. * Code La., 1847; Code Napoleon, 1113; Bac. Abr. Duress, B. See McClintock v. Cummins, 3 McLean, 158. 6 New, but in effect provided for by the French and Code Napoleon, 1113. This is denied (Skeate v. Beale, 11 Ad. & El., 983; Strong v. Grannis, 26 Barb., 122; Watkins v. Baird, 6 Breck v. Cole, 4 Sandf., 88; Bowes v. Heaps, 3 Ves. & § 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.* 1 Whitefield v. Longfellow, 13 Maine, 146. 2 2 Co. Inst., 483; Bac. Abr., Duress, A. 3 See Foshay v. Ferguson, 5 Hill, 158. See contra, Bac. This species of threat is not usually included in the de- 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.* 'Story Eq. Jur., § 187; Gale v. Gale, 19 Barb., 251; Gardner v. Ogden, 22 N. Y., 327; McQueen v. Farquhar 11 Ves., 479; Story Eq. Jur., §§ 255, 257; see Clarke v. Menace. Fraud, actual or constructive. Actual fraud. Construc tive fraud. Actual fraud is a question of fact. Undue 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 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. 2 'Dunham v. Waterman, 17 N. Y., 21; Wilson v. Forsyth, 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. 2 Bury v. Oppenheim, 26 Beav., 594; Nottidge v. Prince, Anderson v. Elsworth, 3 Giff., 154; Cane v. Allen, 2 See Gibson v. Jeyes, 6 Ves., 266; Maitland v. Irving, § 557. Mistake may be either of fact or of law.' Mistake of 'As to mistake of fact there is no question. $558. 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 2 iels v. Bank of Rutland, 29 Vt., 238. Kelly v. Solari, 9 M. & W., 54; Lucas v. Worswick, 1 Willan v. Willan, 16 Ves., 72; M'Carthy v. De Caix, 2 Kelly v. Solari, supra. Hitchcock v. Giddings, 4 Price, 135; Dan., 1; Hastie 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, $560. Mistake of foreign laws is mistake of fact.' 'Bank of Chillicothe v. Dodge, 8 Barb., 233. Mistake 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 Communiby some act or omission by which the person contracting consent. Mode of communicating acceptance of proposals. When communication of accept ance con cludes contract. Acceptance by performance of conditions. Acceptance must be absolute. Revocation, of proposal. Revocation, how made. intends to communicate it, or which necessarily tends to such communication. § 564. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted.' 'Dunlop v. Higgins, 1 H. of L. Cas., 398; Vassar v. Camp, 11 N. Y., 451. § 565. Consent is communicated by each party to the other and the contract is complete, as soon as the person accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section.' 'Mactier v. Frith, 6 Wend., 103; Vassar v. Camp, 11 N. Y., 441. § 566. Performance of the conditions of a proposal is an acceptance thereof.' Harvey v. Johnston, 6 C. B., 304. § 567. An acceptance must be absolute and unqualified,' or must include in itself an acceptance of that character, which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. 'Hough v. Brown, 19 N. Y., 114, 115; Code La., 1799; Borland v. Guffey, 1 Grant (Pa), 394. 'Code La., 1801. § 568. A proposal may be revoked at any time before its acceptance is communicated, but not afterwards.' 'Routledge v. Grant, 4 Bing.. 653; Head v. Diggon, 3 Man. & R., 97; Cooke v. Oxley, 3 T. R., 653. § 569. A proposal is revoked by 1. The receipt of notice of revocation from the proposer by the other party before acceptance; 2. The lapse of the time prescribed therein for its acceptance, or if no time is prescribed, the lapse of a reasonable time without acceptance; 3. The failure to fulfill a condition precedent to accept ance; |