administration of his affairs, if it have not, to confirm or annul the contract; and if it be a contract of such kind, as the administrator might have made, then his assent shall confirm it, or his dissent shall free the contracting party from the obligation on his part. If the assent of a family meeting would have been necessary to authorize the contract, it may be called, on the application of the party, and their decision shall have the same effect in confirming or invalidating the contract, that it would have had on its formation.

ART. 1789.-If a contract, made by a person incapacitated from contracting, shall be confirmed by him after his incapacity shall cease, the rights of third persons acquired before such confirmation are not impaired thereby, even if such rights were acquired with notice of the invalid act.

ART. 1790.-Those who may be interdicted from the enjoyment of their civil rights, in consequence of a conviction for crime, cannot oppose their incapacity against the performance of any contract they may have made, unless it be against some person having power over them during their confinement, nor can any person with whom they contract, plead such incapacity.

SECTION II.

Of the Consent necessary to give validity to a Con

tract.

SI.

Of the Nature of the Assent, and how it is to be shown.

ART. 1791.-When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties

1

to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such assent, and how those circumstances shall be proved: these come within the purview of the law of evidence.

ART. 1792.-As there must be two parties at least to every contract, so there must be something proposed by one, and accepted and agreed to by another, to form the matter of such contract: the will of both parties must unite on the same point.

ART. 1793. It is a presumption of law that, in every contract, each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied.

ART. 1794. The contract, consisting of a proposition and the consent to it, the agreement is incomplete, until the acceptance of the person to whom it is próposed. If he, who proposes, should, before that assent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no con

tract.

ART. 1795.The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.

ART. 1796. He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms, which evince a design to give the other party the right of concluding the contract by his assent, and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the pro

poser to allow.

ART. 1797. But when one party proposes, and the other assents, then the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it.

ART. 1798. The acceptance needs not be made by the same act, or in point of time, immediately after the proposition; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient.

ART. 1799.-The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.

ART. 1800. This takes place, even when more is promised than was demanded, or when less is offered than was required; for example, if a request is made to borrow fifty dollars, and the party answers that he will lend one hundred dollars; or, if the request be to borrow one hundred dollars, and the answer that fifty will be lent, there is no obligation in either case, without a further assent of the borrower to take the one hundred, in the first case, and the fifty in the other: for the proposal to borrow fifty does not necessarily imply an assent to borrow one hundred, nor does the proposal to lend one hundred necessarily imply a desire to lend only fifty. The modification or change of the proposition is, in all respects, considered as a new offer, and the party, making it, is bound by the acceptance in the same manner as if the original proposition had been made by him.

ART. 1801.-When, however, from the circumstances of the case, the offer necessarily implies an assent to the modification of the acceptance, then the obligation is complete, although there be a difference in terms be

tween the one and the other. If, for example, one offers to sell a certain article for one hundred dollars, and the other, not having yet received the offer, should on his part propose to give two hundred dollars, the proposal to give the greater sum necessarily implies an assent to take it for a less, and the contract is complete at the lowest sum.

ART. 1802. But a consent to give any thing else, although of a greater value than that contained in the offer, or to give the same or a larger sum at a different term of payment, does not imply an assent to the offer, and there is in that case no obligation.

ART. 1803. The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.

ART. 1804. If the party, making the offer, die before it is accepted, or he to whom it is made, die before he has given his assent, the representatives of neither party are bound, nor can they bind the survivor. But if the contract be accepted before the death of the party offering it, although he had no notice of it, the obligation is complete; but if the representatives assent to an acceptance of the surviving party in the first instance, or the survivor assent to an acceptance made by the representatives in the second instance, then it becomes a new contract between the representatives and the surviving party.

ART. 1805.-The proposition as well as the assent to a contract may be express or implied;

Express, when evinced by words, either written or spoken;

Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as, evidence of an

assent.

ART. 1806.-Express consent must be given in a language understood by the party who accepts, and the words by which it is conveyed must be in themselves unequivocal: if they may mean different things, they give rise to error, which, as is hereinafter provided, destroys the effect of a contract.

ART. 1807.-Even when words are unequivocal and expressive of assent, they are not always obligatory, when from the context, if in writing, or from what in speech is equivalent to it, the words which immediately precede, or follow, it appears that the party did not intend to obligate himself.

ART. 1808.-Unequivocal words, expressive of mere intent, do not make an obligation.

ART. 1809.-A positive promise, that, from the manner in which it is made, shows that there was no serious intent to contract, creates no obligation.

ART. 1810.-Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. If a mandate is acted on, the mandatary is bound in the same manner as if he had accepted in writing. In all those cases and others of the like nature, all the conditions, which he, who gives or proposes, annexed to the delivery or the acceptance of the