9-03 Consent
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<![CDATA[CHAPTER 9-03CONSENT9-03-01. Requisites of consent. The consent of the parties to a contract must be:1.Free;2.Mutual; and3.Communicated by each to the other.9-03-02.Absence of free consent - Effect.A consent which is not free is notabsolutely void, but may be rescinded by the parties in the manner prescribed by chapter 9-09.9-03-03. What renders apparent consent not free. An apparent consent is not real orfree when obtained through:1.Duress;2.Menace;3.Fraud;4.Undue influence; or5.Mistake.9-03-04. When consent deemed voidable. Consent is deemed to have been obtainedthrough duress, menace, fraud, undue influence, or mistake only when it would not have been<br>given except for one or more of them.9-03-05. Duress defined. Duress consists in:1.Unlawful confinement of the person of a party to a contract, of the husband or wife of<br>such party, or of an ancestor, descendant, or adopted child of such party, husband,<br>or wife;2.Unlawful detention of the property of any such person; or3.Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently<br>made unjustly harassing or oppressive.9-03-06. Menace defined. Menace consists in a threat:1.Of unlawful confinement of the person of a party to a contract, of the husband or wife<br>of such party, or of an ancestor, descendant, or adopted child of such party,<br>husband, or wife, or of confinement of such person, lawful in form but fraudulently<br>obtained, or fraudulently made unjustly harassing or oppressive;2.Of unlawful and violent injury to the person or property of any person specified in<br>subsection 1 hereof; or3.Of injury to the character of any such person.9-03-07. Fraud classified. Fraud is either actual or constructive.Page No. 19-03-08. Actual fraud defined. Actual fraud within the meaning of this title consists inany of the following acts committed by a party to the contract, or with the party's connivance, with<br>intent to deceive another party thereto or to induce the other party 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<br>be true;2.The positive assertion, in a manner not warranted by the information of the person<br>making it, of that which is not true though that person 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; or5.Any other act fitted to deceive.9-03-09. Constructive fraud defined. Constructive fraud consists:1.In any breach of duty which, without an actually fraudulent intent, gains an<br>advantage to the person in fault or anyone claiming under that person, by misleading<br>another to the other's prejudice or to the prejudice of anyone claiming under the<br>other; or2.In any such act or omission as the law specially declares to be fraudulent without<br>respect to actual fraud.9-03-10. Actual fraud is question of fact. Actual fraud is always a question of fact.9-03-11. Undue influence defined. Undue influence consists:1.In the use, by one in whom a confidence is reposed by another or who holds a real<br>or apparent authority over that person, of such confidence or authority for the<br>purpose of obtaining an unfair advantage over that person;2.In taking an unfair advantage of another's weakness of mind; or3.In taking a grossly oppressive and unfair advantage of another's necessities or<br>distress.9-03-12. Mistake classified. Mistake may be either of fact or of law.9-03-13. Mistake of fact defined. Mistake of fact is a mistake not caused by the neglectof 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<br>contract; or2.Belief in the present existence of a thing material to the contract which does not<br>exist, or in the past existence of such a thing which has not existed.9-03-14.Mistake of law defined.Mistake of law constitutes a mistake within themeaning of this title only when it arises from:1.A misapprehension of the law by all parties, all supposing that they knew and<br>understood it and all making substantially the same mistake as to the law; or2.A misapprehension of the law by one party of which the others are aware at the time<br>of contracting, but which they do not rectify.Page No. 29-03-15. Mistake of foreign laws. Mistake of foreign laws is a mistake of fact.9-03-16. Mutual consent defined. Consent is not mutual unless the parties all agreeupon the same thing in the same sense. In certain cases defined in chapter 9-07, they are to be<br>deemed so to agree without regard to the fact.9-03-17. Communication of consent. Consent can be communicated with effect onlyby some act or omission of the party contracting by which the party intends to communicate it, or<br>which necessarily tends to such communication.9-03-18.Mode of communication of acceptance.If a proposal prescribes anyconditions concerning the communication of its acceptance, the proposer is not bound unless<br>they are conformed to. In other cases any reasonable and usual mode may be adopted.9-03-19. When consent communicated. Consent is deemed to be communicated fullybetween the parties as soon as the party accepting a proposal has put that party's acceptance in<br>the course of transmission to the proposer in conformity to section 9-03-18.9-03-20. Acts constituting acceptance. Performance of the conditions of a proposal,or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.9-03-21. Acceptance must be absolute. Except as provided by section 41-02-14, anacceptance must be absolute and unqualified, or must include in itself an acceptance of that<br>character which the proposer can separate from the rest and which will conclude the person<br>accepting. A qualified acceptance is a new proposal.9-03-22. When proposal revocable. A proposal may be revoked at any time before itsacceptance is communicated to the proposer, but not afterwards, except as provided by section<br>41-02-12.9-03-23. How proposal may be revoked. A proposal is revoked:1.By the communication of notice of revocation by the proposer to the other party in<br>the manner prescribed by sections 9-03-17 and 9-03-19 before the latter's<br>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<br>is so prescribed, the lapse of a reasonable time without communication of the<br>acceptance;3.By the failure of the acceptor to fulfill a condition precedent to acceptance; or4.By the death or insanity of the proposer before acceptance of the proposal.9-03-24. Ratification as consent. A contract which is voidable solely for want of dueconsent may be ratified by a subsequent consent.9-03-25. Acceptance of benefit equivalent to consent. A voluntary acceptance of thebenefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the<br>facts are known or ought be to known to the person accepting.Page No. 3Document Outlinechapter 9-03 consent]]>