Page:United States Statutes at Large Volume 76A.djvu/365

–269– -269promise of that party which has not been substantially fulfilled; or (4) if his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of the provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. § 4797. Parties not entitled to specific performance Specific performance can not be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default. Article C—Revision of Contracts § 4811. When contract may be revised When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract 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 intention, as far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. § 4812. Presumption as to intent of parties For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. § 4813. Principles of revision I n revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. § 4814. Enforcement of revised contract A contract may be first revised and then specifically enforced. Article D—Rescission of Contracts § 4821. Grounds for rescission The rescission of a written contract may be adjudged, on the application of a party aggrieved: (1) in any of the cases mentioned in section 1292 of this title; (2) where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or (3) when the public interest will be prejudiced by permitting it to stand. § 4822. Rescission for mistake Kescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made. § 4823. Court may require party rescinding to do equity On adjudging the rescission of a contract, the court may require the party to whom the relief is granted to make any compensation to the other which justice may require.

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