Page:United States Statutes at Large Volume 47 Part 1.djvu/1360

 1336 72d C ONGRESS. SESS. II. C H. .128. FE BRUAR Y 27, 1933 . Obligations not spe- eif iea ll9 en forc eab le. SEC. 1638. WHAT CAN NOT BE SPECIFICALLY ENFORCED .-The follow- ing ing obligations can not be specifically enforced 1. An obligation to render personal service ; 2. An obligation to employ another in personal service 3. An agreement to submit a controversy to arbitration 4. An agre ement to p erfor m an act w hich the p arty has not po wer lawfully to perform when required to do so; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person ; or 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. Cross REFERENCE What parties can not have specific performance, see section 1640 . What parties can not SEC. 1639 : W HAT PARTIES CAN NOT BE COMrELLED TO PERFORM : be compelled to per- form. Specific performance can not be enforced against a party to a con- tract in any of the following cases 1. If he has not received an adequate consideration for the con- tract ; 2. If it is n ot, as to him , jus t and reasonable ; 3. If his assent was obtained by the misrepresentation, conceal- ment, circumvention, or unfair practices of any party to whom per- formance would become due under the contract, or by any promise of such party which has not been substantially fulfilled ; or 4. If his assent was given under the influence of mistake, misappre- hensi on, or sur prise , exc ept t hat w here the c ontra ct pr ovide s for compensation in case of mistake, a mistake within the scope of such provision. may be compensated for, and the contract specifically enforced in other respects,, if proper to be so enforced . What pa rti es em not SEC. 1640. WHAT PARTIES CAN NOT H AVE SPECIFIC PERFORMANCE . IN ha ve spa ' i ance in their r'P favor erform- THEIR: FAVOR .-Specifc performance can not be enforced in favor of . a par ty who has not fully and fairl y per forme d all the condi tions precedent on his part to the obligation of the other party, except where his f ailur e to perfo rm is only part ial, and e ither enti rely im- material, or capable of being fully compensated, in which case spe- cif ic performance may be com pe lle d, up on fu ll compensation being ma de for the default. CRO SS R EFERE NCE What obligations can not be specifically enforced, see section 1638. Revisionofcontracts. R EVISI ON OF CONTRACTS wbatmayberevised. SEC. 1641 . WHEN CONTRACT MAY BE REVISED .'-When, thro ugh fra ud or a mutual mis ta ke of the par ti es, or a mistake of one party, which the other at the ti me kn ew or susp ected , a w ritte n con tract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that inten- tion so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value . CR OSS REFERENCES Ante, p.1198. Contract disregarded where not expressing intent through fraud or mistake. see section 551. Post, p. 1337. Revised to express intention, see section 1643 . Presumption as to SEC. 1642 . PRESUMPTION AS TO INTENT OF PARTIES .- Fo r the pu r- intent of parties. Pos e of rev is ing a contract it mu st be presumed tha t all the parties thereto intended to make an equitable and conscientious agreement.