Page:United States Statutes at Large Volume 47 Part 1.djvu/1217

 72d C ONGRESS. SESS. II. CH. 128 . FEBRUARY 27, 1933 . 1. The suggestion, as a fact, of that which is not true, by one who does not be li eve it to be true ; 2. The posit ive a ssert ion, in a manne r not warr anted by the in for- m ation of the pe rson makin g it, of t hat w hich is not tru e, th ough 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. Cross REe'ars r8ora Deceit, see sections 590 and 591. Post= p_ 1203. Fraudulent instruments and transfers, see sections 16 59 et seq. P p .1338. Res cissi on of cont racts for fraud, see sect ion 581. Post, p. 1201 . SEC. 503. CONSTRUCTIVE FRAUD .-Constructive fraud consists : 'Co n 3trUCtiBe 1. In any breach of duty which, without an act ua lly fraudulent Prana." 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 und er him ; or, 2. In any such act or omission as the law specially declares to be fraudu lent, with out r espec t to actua l fraud . Cross Rz1 aE Recission of contract for fraud, see section 581 . Post, p. 1201. SEC . 504 . ACTUAL FRAUD A QUESTION OF FACT :Actual fraud 1S Actual fraud a quea^ tion of fact . always a qu estio n of fact . SEC . 505 . UNDUE INFLUENCE, WHAT .-Undue influence consists : " Undue influence ." 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 confi- dence or authority for the purpose of obtaining an unfair advantage over him ; 2 . In taking an unfair advantage of anther's weakness of mind ; or, 3. In tak ing a gros sly o ppres sive and u nfair adva ntage of a nther 's necessities or distress . Cross R mwEs Rescission of contracts see sections 581 and 1645. Post, pp. 1201, 1337. Undue influence vitiating will, see section 312 . Ante, p. 1187. SEC . 50 6. MISTAKE, wHAT .-M istak e may be e ither of f act or law . "Mistake ." SEC . 507. MIS TAKE OF FA CT .-Mistake of fact is a mistake, not Mistake of tact. caused by the neglect of a legal duty on the part of the person making the m istak e, and con sisti ng in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract 2. Belief in the present existence of a thing material to the con tr act which doe s not exist, or in the pa st existence of s uch a thing, which has not existed . Cro ss RssERmccR Rescission of contract for mistake, see section 581 . Post, p . 1201. SEC . 508 . MISTAKE OF LAw .-Mistake of law constitutes a mistake, Mistake of law . within the meaning of this subchapter, only when it arises from 1. A mis appre hensi on of the law by all part ies, all s uppos ing t hat they knew and understood it, and all making substantially the same mi sta ke as to the law ; or, 2. A misapprehension of the law by one party, of which the others are aware at the tim e of contracting, but whi ch th ey do not rectify. 1193
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