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Termination of the Agreement

Termination of the Agreement

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Published by WatsonFraud9892
Judges ruled outside the law
Judges ruled outside the law

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Published by: WatsonFraud9892 on Apr 08, 2010
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10/24/2012

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1
Treatise in Support Termination of Agreement and Dissolution of LLCCs Affects PropertyThompson on Real Property(2009); (Abridged to correspond to issues in dispute).
Vendors and Purchasers
,
Chapter 96
,11-
96
§ 96.15 Termination of the Agreement
.n79
1
 Where one party to a land contract defaults
,
the other has the following possible remedies:(
1
) the contract may be avoided or annulled and the parties restored to their original position bytruerescission through mutual agreement
,
 (2) the unilateral right of the other party to treat the default as an offer of rescission
,
n794(3) strict foreclosure
,
quiet title
,
ejectment and similar actions which terminate the contract andtheobligations of further performance
,
n795(4) specific performance or actions for damages
,
n796 and(5) forfeiture and liquidated damages.n797
§ 96.15(a)(1) Right of Rescission of the Contract.
 It is good ground for rescission or cancellation that the instrument is voidable for anyreason.n824Fraud
,
accident
,
and misrepresentation are well
-k 
nown grounds for equitable intervention andcancellation of a written instrument..n827 Generally courts of equity have jurisdiction todecree the cancellation of an instrument vitiated by fraud or misrepresentation in its procurement.n828 Thus
,
where the execution and delivery or acceptance of a written instrumenthas been induced by fraud
,
and the defrauded party wishes to rescind the agreement and berelieved from its provisions
,
the proper remedy is by way of rescission and cancellation.n829So
,
in order for the court to grant relief by way of rescission
,
it must generally appear that thecontract was procured through fraud
,
mista
e
,
failure of title or defects in title; or 
,
at least
,
itmust be shown that to deny plaintiff equitable relief will cause an injury for which a court
 
2
 
of law cannot adequately compensate the plaintiff.n833''Restoration to status quo
,
'' as respects contracts for the sale and purchase of real estate
,
meansthe restoration of what was received by the transaction.n863 It is a condition precedent torescission
,
n864 for rescission being an equitable remedy
,
the party see
ing such relief must
,
as a prerequisite
,
offer to do equity.n865To obtain rescission of a contract for fraud
,
whether such relief is sought informally or by formaldecree in equity
,
the adversary party must usually be placed in the pre
-
contract position by the party see
ing relief.n867 Thus
,
the vendor of real estate see
ing cancellation of a contract of salemust restore the cash payment if any has been made.n868As a general rule
,
in order to dissolve a sale for nonpayment of the purchase price
,
the situationmust be such as to put both parties in the same position as they were before the sale wasmade;n869 but where the contract contains a forfeiture clause and ma
es no reference toimprovements on the land
,
the vendor is entitled to stand on the strict terms of the contractwithout being required to return or tender any part of the purchase money paid
,
if the purchaser can show a right to terminate the contract and declare a forfeiture. n870 The vendee in possession must restore the property to the vendor or offer to doso.n87
1
Also
,
a vendee of landwho has ta
en possession under contract or conveyance must surrender possession and mustreconvey
,
or at least be ready to do so
,
if the vendee has already received conveyance.n873
§ 96.15(a)(4) Rescission Based on Fraud.n966
As a general and basic rule
,
where fraud has occurred in the inducement in a contract for the saleand purchase of landthe contract is subject to rescission. It has always been the peculiar provinceof courts to grant relief against fraud.n967Fraud
,
in some form or other 
,
is the most usual ground for invo
ing the aid of equity to rescind acontract for the sale ofreal estate.n968 No contract is formed until one party has given anunqualified and unconditional assent to the offer ofanother; but the offer and acceptance may
 
3
 
appear to be complete in every respect
,
and notwithstanding this the contractbe voidable at theoption of one of the parties. Chief among the ways by which apparent consent may be inducedarefraud and misrepresentation. Fraud as to material matter will vitiate
,
or render voidable
,
anycontract.n969Fraud is something more than mere bad faith; it means proceeding or acting dishonestly
,
 intentionally
,
and deliberatelywith a wic
ed motive
,
to cheat or deceive one party to atransaction; the fraud results in damage or loss to one party andin the advantage or gain for theother party.n974 Fraud in the consideration will invalidate a contract of purchase.n975Fraud justifying rescission does not ordinarily include inadequacy of price
,
improvidence
,
 surprise
,
or merehardship.n976The fraud may be established by circumstantial evidence
,
n982 but not by misrepresentationsmade after the transaction.n983 The purchaser may waive the fraud by ratification with
nowledge.n984 The contract is rescinded as a whole.n986 The rescission for fraud destroys thecontract ab initio and leaves the parties in the same situation as though no contract had beenmade.n987 The injured person may affirm thecontract and sue for damages.n988The purchaser may either affirm the contract and sue for damages
,
or disaffirm it
,
and bereinstated in the position in thepurchaser held before the contract was consummated. Theseremedies
,
however 
,
are not concurrent
,
but whollyinconsistent. The adoption of one is theexclusion of the other. The purchaser who desires to rescind must act promptly
,
and return or offer to return what was received under the contract. The purchaser cannot retain the fruits of thecontractawaiting future developments to determine whether it will be more profitable to affirm or disaffirm it. Any delay
,
especially his remaining in possession of the property received under thecontract
,
and dealing with it as the purchaser'sown
,
will be evidence of intention to abide by thecontract.n99
1
It is a question for the jury to determine whether thepurchaser has relied on themisrepresentation.n992In addition to the remedies above mentioned
,
the purchaser may
,
upon discovery of the fraud
,
 rescind the contractabsolutely
,
and sue in an action at law
,
and recover the consideration given

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