Title 28, Title 28

(1) This section applies only to the sale of a newly constructed residence that has not been previously occupied and where the seller is the builder or a developer who has built or had the residence built for the purpose of resale. (2) A builder or developer that is subject to th…

The consent of the parties to a contract must be: (1) free; (2) mutual; and (3) communicated by each to the other.

A consent which is not free is nevertheless not absolutely void but may be rescinded by the parties in the manner prescribed by part 17 of this chapter.

Consent is not mutual unless the parties all agree upon the same thing in the same sense, but in certain cases defined by chapter 3, they are to be deemed so to agree without regard to the fact.

A contract which is voidable solely for want of due consent may be ratified by a subsequent consent.

(1) An apparent consent is not real or free when obtained through: (a) duress; (b) menace; (c) fraud; (d) undue influence; or (e) mistake. (2) Consent is deemed to have been obtained through one of the causes mentioned in subsection (1) only when it would not have been given had …

Duress consists in: (1) unlawful confinement of the person of the party, of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; (2) unlawful detention of the property of any such person; or (3) confinement of such pe…

Menace consists in a threat of: (1) such duress as is specified in subsections (1) and (3) of 28-2-402; (2) unlawful and violent injury to the person or property of any such person in circumstances described in 28-2-402; or (3) injury to the character of any such person.

Fraud is either actual or constructive. Actual fraud is always a question of fact.

Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with the party's connivance with intent to deceive another party to the contract or to induce the other party to enter into the contract: (1) the suggestio…

Constructive fraud consists of: (1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person's prejudice or to the prejudice of anyone claimin…

Undue influence consists of: (1) the use by one in whom a confidence is reposed by another person or who holds a real or apparent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the other person; (2) taking an u…

Mistake may be either of fact or law.

Mistake of fact is a mistake not caused by the neglect of 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 contract; or (2) belief in the present existence of a t…

Mistake of law constitutes a mistake, within the meaning of this part, only when it arises from: (1) a misapprehension of the law by all parties, all supposing that they knew and understood it and all making substantially the same mistake as to the law; or (2) a misapprehension o…

Mistake of foreign laws is a mistake of fact.

(1) Consent can be communicated with effect only by some act or omission of the party contracting by which the party intends to communicate it or that necessarily tends to the communication. (2) If a proposal prescribes any conditions concerning the communication of its acceptanc…

Consent is considered to be fully communicated between the parties as soon as the party accepting a proposal has put that party's acceptance in the course of transmission to the proposer in conformity with 28-2-501.

(1) Performance of the conditions of a proposal or the acceptance of the consideration offered with a proposal is an acceptance of the proposal. (2) A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as…

An acceptance must be absolute and unqualified or must include in itself an acceptance of that character which the proposer can separate from the rest and which will bind the person accepting. A qualified acceptance is a new proposal.

A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards.

A proposal is revoked by: (1) the communication of notice of revocation by the proposer to the other party in the manner prescribed by 28-2-501 and 28-2-502 before the other party's acceptance has been communicated to the proposer; (2) the lapse of the time prescribed in the prop…

The object of a contract is the thing which it is agreed on the part of the party receiving the consideration to do or not to do.

The object of the contract must be lawful when the contract is made and possible and ascertainable by the time the contract is to be performed. Everything is deemed possible except that which is impossible in the nature of things.

Where a contract has but a single object and such object is unlawful, whether in whole or in part, or wholly impossible of performance or so vaguely expressed as to be wholly unascertainable, the entire contract is void.

Where a contract has several distinct objects of which one at least is lawful and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.

That is not lawful which is: (1) contrary to an express provision of law; (2) contrary to the policy of express law, though not expressly prohibited; or (3) otherwise contrary to good morals.

Except as provided in 27-1-753, all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person's own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are a…

Any contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided for by 28-2-704 or 28-2-705, is to that extent void.

(1) A person who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within the areas provided in subsection (2) so long as the buyer or any person deriving title to the goodwill from the buyer carries on a like business in the…

Partners may, upon dissolution of the partnership, agree that one or more of them may not carry on a similar business within the areas provided in 28-2-704(2).

Every contract in restraint of the marriage of any person other than a minor is void.

A condition in a contract the fulfillment of which is impossible or unlawful within the meaning of part 6 and this part or which is repugnant to the nature of the interest created by the contract is void.

Every stipulation or condition in a contract by which any party to the contract is restricted from enforcing the party's rights under the contract by the usual proceedings in the ordinary tribunals or that limits the time within which the party may enforce the party's rights is v…

(1) A contract in writing by which any promise to pay money is created may not contain any provision either empowering any person to enter judgment by confession against any party to the contract or empowering any person as the agent of any party to the contract to either confess…

(1) Except as provided in subsection (2), a party in a settlement negotiation may not demand, as a condition of settlement, that the settlement proceeds are classified as a specific category of damage that does not accurately describe the specific damages at issue. (2) The partie…

(1) Every contract by which the amount of damage to be paid or other compensation to be made for a breach of an obligation is determined in anticipation thereof is to that extent void, except as expressly provided in subsection (2). (2) The parties to a contract may agree therein…

A construction contract may not contain provisions requiring a contractor, subcontractor, or material supplier to waive the right to a construction lien or a right to a claim against a payment bond before the contractor, subcontractor, or material supplier has been paid for the l…

(1) A contract that creates or establishes the terms of employment, a partnership, or any other form of professional relationship with a health care provider described in subsection (2) may not restrict the right of the health care provider, after the termination of the employmen…

Any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by the person, other than prejudice that the person is at the time of consent lawfully bound t…

An existing legal obligation resting upon the promisor, a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee is also a good consideration for a promise to an extent corresponding with the extent of the obligation, but n…

The consideration of a contract must be lawful within the meaning of 28-2-701. If any part of a single consideration for one or more objects or of several considerations for a single object is unlawful, the entire contract is void.

A written instrument is presumptive evidence of a consideration.

The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.

A consideration may be executed or executory, in whole or in part. Insofar as it is executory, it is subject to the provisions of part 6 of this chapter.

When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person or regulated by any specified standard.