Lecture notes
Vices of will
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- Institution
Analysis of voidable contracts in the particular case of mistake in vices of will.
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17.Lesson 17Tuesday, 1 March 2022 09:16
Voidable contracts:
○ Vices of will
§ Mistake:
□ Erroneous belief: derives from the bad knowledge of the reality —>
interpretation and representation of reality between the two parties
□ Erroneous spelling out: the factual circumstances are well known an
were willing to conclude the contract, but there was a problem in co
in the end the will expressed is not the same [ in this case adjustmen
—> the mere fact of the mistake of one party is not enough to set aside th
legal system must protect both parties (the other was relying on the contr
balance out the mutual agreement and the reliance of the counter-party:
□ Desire to promote or preserve certainty in commercial trades
□ Policy to preserve fair dealing and integrity of the agreement (mutua
The element by which the legal system keep in balance this two needs is th
recognisance: if one party knows or should know that the counter party ha
mistake, but fails to inform him of the mistake —> the interest of the mist
prevails on the other —> the contract can be set aside —> ! To inform the
mistake means to apply the principle of good faith
To set aside the contract, the mistake:
□ Should be recognisable - through diligence
□ Should fail some fundamental terms: (not every term can be taken in
otherwise the parties would be allowed to escape easily from a cont
to have interred into)
a) The nature of the contract - function of the contract
b) The subject matter - performances
c) The identy of the counter party - role/traits of the other party
role…)
d) When the mistake was the reason of entering the contract
Ex. Eu Contract law
Art. 4:103 Fundamental mistake as to facts or law
1. A party may avoid a contract for mistake of fact or law existing when
concluded if:
a) (i) the mistake was caused by information given by the other p
(il) the other party knew or ought to have known of the mistak
contrary to good faith and fair dealing to leave the mistaken p
(ili) the other party made the same mistake, and
(b) the other party knew or ought to have known that the mistaken p
known the truth, would not have entered the contract or would have
fundamentally different terms
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