SECTIONS 1565-1590 - California Statutes

CIVIL CODE

SECTION 1565-1590

1565. The consent of the parties to a contract must be:
1. Free;
2. Mutual; and,
3. Communicated by each to the other.

1566. A consent which is not free is nevertheless not absolutely
void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567. An apparent consent is not real or free when obtained
through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.

1568. Consent is deemed to have been obtained through one of the
causes mentioned in the last section only when it would not have been
given had such cause not existed.

1569. 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; or,
3. Confinement of such person, lawful in form, but fraudulently
obtained, or fraudulently made unjustly harrassing or oppressive.

1570. Menace consists in a threat:
1. Of such duress as is specified in Subdivisions 1 and 3 of the
last section;
2. Of unlawful and violent injury to the person or property of any
such person as is specified in the last section; or,
3. Of injury to the character of any such person.

1571. Fraud is either actual or constructive.

1572. Actual fraud, within the meaning of this Chapter, consists in
any of the following acts, committed by a party to the contract, or
with his connivance, with intent to deceive another party thereto, or
to induce him to enter into the contract:
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. The suppression of that which is true, by one having knowledge
or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.

1573. 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 to the
prejudice of any one claiming under him; or,
2. In any such act or omission as the law specially declares to be
fraudulent, without respect to actual fraud.

1574. Actual fraud is always a question of fact.

1575. Undue influence consists:
1. In the use, by one in whom a confidence is reposed by another,
or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair
advantage over him;
2. In taking an unfair advantage of another's weakness of mind;
or,
3. In taking a grossly oppressive and unfair advantage of another'
s necessities or distress.

1576. Mistake may be either of fact or law.

1577. 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.

1578. Mistake of law constitutes a mistake, within the 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; or,
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.

1579. Mistake of foreign laws is a mistake of fact.

1580. Consent is not mutual, unless the parties all agree upon the
same thing in the same sense. But in certain cases defined by the
Chapter on Interpretation, they are to be deemed so to agree without
regard to the fact.

1581. Consent can be communicated with effect, only by some act or
omission of the party contracting, by which he intends to communicate
it, or which necessarily tends to such communication.

1582. 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.

1583. Consent is deemed to be fully communicated between the
parties as soon as the party accepting a proposal has put his
acceptance in the course of transmission to the proposer, in
conformity to the last section.

1584. Performance of the conditions of a proposal, or the
acceptance of the consideration offered with a proposal, is an
acceptance of the proposal.

1584.5. No person, firm, partnership, association, or corporation,
or agent or employee thereof, shall, in any manner, or by any means,
offer for sale goods, wares, merchandise, or services, where the
offer includes the voluntary and unsolicited sending or providing of
goods, wares, merchandise, or services not actually ordered or
requested by the recipient, either orally or in writing. The receipt
of any goods, wares, merchandise, or services shall for all purposes
be deemed an unconditional gift to the recipient who may use or
dispose of the goods, wares, merchandise, or services in any manner
he or she sees fit without any obligation on his or her part to the
sender or provider.
If, after any receipt deemed to be an unconditional gift under
this section, the sender or provider continues to send bill
statements or requests for payment with respect to the gift, an
action may be brought by the recipient to enjoin the conduct, in
which action there may also be awarded reasonable attorney's fees and
costs to the prevailing party.
For the purposes of this section and limited to merchandise or
services offered for sale through the mails, the "voluntary and
unsolicited sending or providing of goods, wares, merchandise, or
services not actually ordered or requested by the recipient, either
orally or in writing," includes any merchandise or services selected
by the company and offered to the consumer which will be mailed to
him or her for sale or on approval or provided to him or her unless
he or she exercises an option to reject the offer of sale or receipt
on approval. Merchandise or services selected by the seller and
offered for sale on a periodic basis must be affirmatively ordered by
a statement or card signed by the consumer as to each periodic offer
of merchandise or services. This paragraph shall not apply to any of
the following:
(a) Contractual plans or arrangements complying with this
subdivision under which the seller periodically provides the consumer
with a form or announcement card which the consumer may use to
instruct the seller not to ship the offered merchandise. Any
instructions not to ship merchandise included on the form or card
shall be printed in type as large as all other instructions and terms
stated on the form or card. The form or card shall specify a date by
which it shall be mailed by the consumer (the "mailing date") or
received by the seller (the "return date") to prevent shipment of the
offered merchandise. The seller shall mail the form or card either
at least 25 days prior to the return date or at least 20 days prior
to the mailing date, or provide a mailing date of at least 10 days
after receipt by the consumer, except that whichever system the
seller chooses for mailing the form or card, the system must be
calculated to afford the consumer at least 10 days in which to mail
his or her form or card. The form or card shall be preaddressed to
the seller so that it may serve as a postal reply card or,
alternatively, the form or card shall be accompanied by a return
envelope addressed to seller. Upon the membership contract or
application form or on the same page and immediately adjacent to the
contract or form, and in clear and conspicuous language, there shall
be disclosed the material terms of the plan or arrangement including
all of the following:
(1) That aspect of the plan under which the subscriber must notify
the seller, in the manner provided for by the seller, if he or she
does not wish to purchase or receive the selection.
(2) Any obligation assumed by the subscriber to purchase a minimum
quantity of merchandise.
(3) The right of a contract-complete subscriber to cancel his or
her membership at any time.
(4) Whether billing charges will include an amount for postage and
handling.
(b) Other contractual plans or arrangements not covered under
subdivision (a), such as continuity plans, subscription arrangements,
standing order arrangements, supplements and series arrangements
under which the seller periodically ships merchandise to a consumer
who has consented in advance to receive the merchandise on a periodic
basis.

1584.6. If a person is a member of an organization which makes
retail sales of any goods, wares, or merchandise to its members, and
the person notifies the organization of his termination of membership
by certified mail, return receipt requested, any unordered goods,
wares, or merchandise which are sent to the person after 30 days
following execution of the return receipt for the certified letter by
the organization, shall for all purposes be deemed unconditional
gifts to the person, who may use or dispose of the goods, wares, or
merchandise in any manner he sees fit without any obligation on his
part to the organization.
If the termination of a person's membership in such organization
breaches any agreement with the organization, nothing in this section
shall relieve the person from liability for damages to which he
might be otherwise subjected to pursuant to law, but he shall not be
subject to any damages with respect to any goods, wares, or
merchandise which are deemed unconditional gifts to him under this
section.
If after any receipt deemed to be an unconditional gift under this
section, the sender continues to send bill statements or requests
for payment with respect thereto, an action may be brought by the
recipient to enjoin such conduct, in which action there may also be
awarded reasonable attorneys' fees and costs to the prevailing party.

1585. 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.

1586. A proposal may be revoked at any time before its acceptance
is communicated to the proposer, but not afterwards.

1587. A proposal is revoked:
1. By the communication of notice of revocation by the proposer to
the other party, in the manner prescribed by Sections 1581 and 1583,
before his acceptance has been communicated to the former;
2. By the lapse of the time prescribed in such proposal for its
acceptance, or if no time is so prescribed, the lapse of a reasonable
time without communication of the acceptance;
3. By the failure of the acceptor to fulfill a condition precedent
to acceptance; or,
4. By the death or insanity of the proposer.

1588. A contract which is voidable solely for want of due consent,
may be ratified by a subsequent consent.

1589. A voluntary acceptance of the benefit of a transaction is
equivalent to a consent to all the obligations arising from it, so
far as the facts are known, or ought to be known, to the person
accepting.

1590. Where either party to a contemplated marriage in this State
makes a gift of money or property to the other on the basis or
assumption that the marriage will take place, in the event that the
donee refuses to enter into the marriage as contemplated or that it
is given up by mutual consent, the donor may recover such gift or
such part of its value as may, under all of the circumstances of the
case, be found by a court or jury to be just.