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Voidable contracts
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Analysis of voidable contracts in the case of misrepresentation/fraud, duress and undue influence
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18. Lesson 18Thursday, 3 March 2022 16:00
§ Misrepresentation/fraud
= the mistake is originated by the behaviour of the counter party —> with
the other person fall in mistake —> deceiving the other party to make it en
Ex. Sale of a silver object, but I believe it’s old. That’s because the other pa
think that it was gold
Ex. I believe a land has all the necessary authorisations, but there aren’t. T
induced me to think so.
2 different cases:
□ Fundamental: if not deceived the party would not have entered the
contract is voidable
□ Incidental: if not deceived the party wouldn’t have entered into the
different terms —> no voidable but the mislead party can claim for d
contractual liabilities
Ex. Art. 1440 Incidental fraud - if the deception was not such as to co
contract is valid, even though without the deception it would have in
terms; however, the contracting party in bad faith is liable for damag
Art. 1439 Fraud - fraud is caused for the annulment of the contract when t
employed from one of the contracting party was such that without it, the o
party would not have entered into the contract. When the deception was e
third person, the contract is voidable if it was known to the party who deriv
Usually one party deceives the other party through active acts and behavio
fraud
! Sometimes silence is used (no action - not giving enough info)—> is it con
Only when the counter party has the duty to give some important info (go
then I can ask for annulment or damage compensation —> ! It’s present in
it’s soft law [this situation must be considered case by case]
Ex. Eu Law
Art. 4:107 Fraud -
(1)A party may avoid a contract when it has been led to conclude it by the
fraudulent representation, whether by words or conduct, or fraudulent non
information which in accordance with good faith and fair dealing it should
(2) A party's representation or non-disclosure is fraudulent if it was intende
(3) In determining whether good faith and fair dealing required that a part
particular information, regard should be had to all the circumstances, inclu
(a) whether the party had special expertise;
(b) the cost to it of acquiring the relevant information;
(c) whether the other party could reasonably acquire the information
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