§ 1317. Having completed the consideration of the law applicable to contracts in general, and also the principles governing those contracts which are of a peculiar nature, or which seemed to require a more extended and particular consideration, we now come to the subject of Defences.
§ 1318. This subject we shall briefly treat, contenting ourselves with merely sketching a general outline. In fact, many of the remarks upon defences which would come within the province of the present work have been already anticipated in the previous pages; and, inasmuch as a full investigation, de novo, of the law applicable to this subject would render the present work too bulky for convenient use, the consideration of defences will be only cursorily examined.
§ 1319. In the first place, it is very evident from what has already been stated in the former part of this treatise that a violation of the legal prerequisites of a contract is a defence to any claim which may be set up under that contract. Thus, if the contract be illegal or fraudulent, or directly contravene public policy and morality, or if the parties thereto be incompetent to contract, as if they be infants or married women, the contract cannot be enforced, and this special defence is a complete answer to the action.
§ 1320. But besides these defences there are others which may be pleaded in bar of an action upon a contract, which we propose to consider in the following order, namely: 1. Performance; 2. Payment; 3. Receipts; 4. Accord and Satisfaction; 5. Arbitrament and Award; 6. Pendency of another Action, or Verdict, or Judgment; 7. Release; 8. Tender; 9. Statute of Limitations; 10. Set-off.