Учебный год 22-23 / Mistake, Fraud and Duties to Inform in European Contract Law (The Common Core of European Private Law)

from the subject matter which the parties believed to exist’.31 If the test is satisfied, the contract is void ab initio. Until recently it was thought that a less serious mistake might allow the court to declare the contract voidable in equity (that is, not automatically void ab initio, but to be set aside with retrospective effect, in the court’s discretion, and on such terms as the court thinks fit), but this has recently been rejected by the Court of Appeal.32 Even if it can be shown that the mistake here was shared -- that is, that Bob too thought at the time that the paintings were minor works -- then it is still not a sufficiently serious mistake to make the contract void ab initio. Lord Atkin in Bell v. Lever Bros. Ltd.33 gave the example of a picture sold by A to B, both believing that it is the work of an old master but it turns out to be a modern copy: but ‘A has no remedy in the absence of representation or warranty.’ Although the facts here are the reverse (i.e. the parties wrongly believe the paintings not to be genuine) it seems that a court would follow the same line.

If it could not be shown that Bob shared the mistake, but instead realised that he might be buying paintings of a different kind from that which Anatole believed he was selling, then there would still not be a remedy for mistake. Anatole’s mistake is then unilateral; such a mistake can generally be taken into account only if it related to the terms of the contract itself. But here there is no doubt about the terms of the contract (i.e. the promises by each party in the contract). The mistake relates to a quality (certainly a very important quality) in the subject matter of the contract. It has long been held that such a mistake is not sufficient, as long as it is not created by the defendant’s misrepresentation: in Smith v. Hughes34 Blackburn J said:

even if the vendor was aware that the purchaser thought that the article possessed that quality, and would not have entered into the contract unless he had so thought, still the purchaser is bound, unless the vendor was guilty of some fraud or deceit upon him, and . . . a mere abstinence from disabusing the purchaser of that impression is not fraud or deceit; for whatever may be the cases in a court of morals, there is no legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor.

Given that Anatole would not have any remedy even in the situation where the paintings are authentic Degas, it follows that no remedy

31Associated Japanese Bank (International) Ltd. v. Crédit du Nord S. A, [1989] 1 WLR 255 at p. 268, approved in The Great Peace [2002] EWCA Civ 1407, [2003] QB 679, at [90]--[91].

32The Great Peace, above, fn. 31. 33 [1932] AC 161 at p. 224.

34(1871) LR 6 QB 597 at p. 607. This statement confirms that the seller has no obligation to disclose defects to a buyer: caveat emptor. The position of the buyer is a fortiori.

would be given in the situation where the facts cannot be so strong as to fall within this, and the mistake is simply one as to value.

This area is predominantly a matter for case law, and so has been discussed in those terms. There are no legislative provisions, or other legal formants, which impact on the case law solution to Anatole’s position, except that academic writing has sometimes been critical of the rigidity of the approach to caveat emptor in recent times. The most recent case law development,35 however, has re-emphasised the courts’ reluctance to allow mistake to vitiate a contract.

France

Under French law Anatole’s only remedy would lie in asking the court to annul the sale36 for mistake (erreur) relating to the substantial qualities in the subject matter of the contract under art. 1110 of the Civil Code.37 The likelihood of this action succeeding is subject to two conditions:

(i) The mistake relates to whether the paintings can be attributed to Degas or one of his pupils. Is such a mistake fundamental so as to annul the contract?

(a) Does the mistake relate to a substantial quality? The mistake could be considered to be a mistake relating to a substantial quality since French case law has a subjective view of mistake and considers that it falls within the substance if it is of such a nature that ‘without it one of the parties would not have contracted’.38 Numerous cases have held that the artistic authorship of a work of art is a substantial quality under art. 1110 of the Civil Code, the most famous being the ‘Poussin’39 and

35The Great Peace, above, fn. 31. This case was, however, decided in a commercial context which may explain the tone adopted by the court: J. Cartwright, Rewriting the Law on Mistake [2003] RLR 93.

36Article 1117 of the Civil Code states ‘la convention contractée par erreur [. . .] n’est point nulle de plein droit; elle donne seulement lieu à une action en nullité . . .’ (‘The contract contracted by mistake . . . is not void as of right; it only gives rise to an action to be annulled.’) It is thus stricter than § 143 BGB, see the German report below. Furthermore, art. 1304 of the Civil Code states that such an action is prescribed five years after the mistake is discovered.

37‘L’erreur n’est une cause de nullité de la convention que lorsqu’elle tombe sur la substance mˆeme de la chose qui en est l’objet.’ (‘Mistake is only a cause for nullity when it relates to the substance itself of the subject matter of the contract.’)

38Civ, 28 January 1913, Recueil Sirey, 1913. 1. 487, comp. Com, 20 October 1970, JCP 1971. II. 16916, note J. Ghestin; Civ 1, 8 March 1988, Bull civ I, no. 56.

39Civ 1, 22 February 1978, D 1978. 601, note P. Malinvaud, JCP 1978. II. 18925, Def 1978. 1346, obs. J.-L. Aubert, RTDCiv 1979, 127, obs. Y. Loussouarn; Civ 1, 13 December 1983, D 1984. 340, note J.-L. Aubert, JCP 1984. II. 20186, concl. Gulphe; J. Ghestin, note sous Com, 20 October 1970, JCP 1971. II. 16916.

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the ‘Verrou de Fragonard’40cases. Moreover, the fact that Anatole as the seller has made a mistake about the authorship of the paintings and that the mistake concerns the very subject matter of his own obligation does not preclude him from invoking the mistake, although the question has given rise to a great deal of controversy amongst scholars.

The case law definition of mistake is very wide and exceeds by far the apparent reach of art. 1110 of the Civil Code. Mistakes that case law considers to relate to ‘the substance of the thing’ are indeed very varied. The authenticity of a work of art is a good illustration. Very often, actions to annul the sale of works of art have been brought before the courts when their authorship was not that which a contracting party believed at the time of the sale.41 The increasing risk of mistakes in the field can probably be explained by the variable attribution of certain works as a result of investigations carried out by experts.

In view of the risk that such a wide and subjective view of mistake may have on legal certainty, case law requires a further condition to be fulfilled, namely that the party contracting with the mistaken party (in this case Bob) was aware of the essential character which the latter (Anatole) attached to the litigious quality. It is said that the quality must ‘have entered into the contractual field’42 or have been ‘agreed’.43 According to general legal rules, the burden of proof lies on Anatole as the claimant.44 Traditionally, the quality of the painting to which the mistake relates justifies annulling the contract. However, here the quality as to the paintings’ authenticity is open to doubt.

(b) Do doubts as to authenticity disqualify the mistake? Mistake is defined as arising where a party’s belief clashes with the reality. Although this is simple when the reality is clear,45 it is less so when the reality is hedged with doubt.46 This appears to be the case here as the expert opinions are contradictory.

40Civ 1, 24 March 1987, D 1987. 489, note J.-L. Aubert, RTDCiv, 1987. 743, obs. J. Mestre.

41See the abundant case law cited by J. Ghestin, Traité de droit civil, La formation du contrat

(Paris, 1993), no. 502, p. 465.

42Y. Loussouarn, obs. RTDCiv 1971, 131.

43J. Ghestin, note sous Com, 20 October 1970, JCP 1971. II. 16916.

44He must prove that he thought that the painting was not by Degas and that the absence of this quality induced him to contract. He must also prove that Bob knew that the litigious quality was a determining factor. All kinds of evidence of mistake (examined in concreto) made at contract formation (e.g. by presumptions such as the moderate price paid for the paintings) and even the aid of elements which arose after the sale, such as the expert opinions are admissible.

45Anatole believed the painting was not by Degas whereas it is by Degas.

46Anatole believed the painting was not by Degas whereas the painting might be by Degas.

In this sort of case a further distinction may be drawn: either Anatole had accepted a risk about the paintings’ authors, then the risk enters into the contractual field and ‘chases away the mistake’47 and there is no remedy available to annul the contract of sale. Or, as seems more likely since Anatole actually drafted the catalogue description, he had not accepted the risk.48 The court’s interpretation of the catalogue description will therefore determine the acceptance of the risk. In that respect, it is interesting to note a decree has been enacted in an attempt to define common ambiguous expressions.49 Thus a remedy would still be available to annul the contract despite the subsisting doubt about the reality.50

(ii) Is a mistake excusable (erreur excusable) if it is made by a seller with professional experience? The fact that Anatole made a mistake and is a professional impressionist specialist may bar his claim. If it is generally admitted that contracting parties are obliged to disclose relevant factors about which they have knowledge,51 namely those which may change the other party’s behaviour, it is likewise considered that the latter has a duty to require information. These obligations to disclose and require information are all the more consequential here in that they lie on a professional in his field of speciality. This is the case for both Bob and Anatole and in this respect it makes no difference that the latter sold paintings from his private collection. Whether or not a mistake will be legally excused is decided in concreto with regard to the actual competence of the mistaken party and the fact that the contract had been concluded for his private needs is irrelevant.52 It is arguable that Anatole did not carry out sufficient enquiries when he was compiling the catalogue and it is highly likely that the courts would dismiss Anatole’s action on the grounds that his mistake is inexcusable.

47J. Mestre, obs. RTDCiv 1989, 740.

48The painting was presented as the ‘charming work of an unknown artist’ which excludes the possibility of it being attributed to a famous artist.

49Decree no. 81--255 of 3 March 1981. In addition, upon the buyer’s request, the decree obliges sellers, even of private collections, as here, to deliver an invoice of sale specifying the painting’s authorship etc. which constitutes preliminary evidence of the mistake -- cf. J. Ghestin, La Formation, no. 530, p. 497.

50This results from the Poussin case, see above.

51M. Fabre-Magnan, De l’obligation d’information dans les contrats, Essai d’une théorie (Paris, 1992), no. 169, pp. 132 ff.

52In this sense a case which held that the mistake made by an amateur of art was unforgivable, when he had attached importance to the description ‘attributed to Courbet’ in order to believe the signature on the painting which he had bought: Civ 1, 16 December 1964, Bull civ I, no. 575.

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(iii)In the alternative, Anatole could plead that Bob was in breach of his precontractual duty to inform, or that he was liable for deceitful manoeuvres on the basis of fraud53 in order to claim damages in tort.54 These actions can be claimed concurrently.55 However, it is highly unlikely that this action will succeed on the facts as there is no evidence that Bob’s fraudulent behaviour and intention have induced Anatole to contract. Moreover, the Cour de Cassation held recently that a professional buyer does not owe a duty to inform a seller who is not a professional, in a case similar to the facts here;56 a fortiori, where both the buyer and seller have expertise in the field, as is the case here, it is most unlikely that Bob would be held to owe a duty to inform Anatole, the seller.

The last remedy which might be envisaged is on the grounds of lésion,57 but it is emphasised that it is not available in the circumstances since art. 1674 of the Civil Code does not cover sales for movable goods such as works of art.

Germany

Under German law Anatole can try annulling on grounds of mistake and a claim to vary the contract because the basic contractual assumption has failed (Wegfall der Geschäftsgrundlage).

53Provided that the constitutive elements -- the existence of deceitful manoeuvres which may result from mere silence and a breach of a precontractual duty of disclosure, intention to induce a mistake in the other party to the contract and the fact that these manoeuvres led the other party to make the contract -- are proven (art. 1116 of the Civil Code).

54Com, 18 October 1994, Bull civ IV, no. 293, D 1995. 180, note C. Atias, ‘Contrats, concurrence, consommation’, 1995, no. 1, p. 3, note L. Leveneur, RTDCiv 1995. 353, obs. J. Mestre. Such an action in tort is possible even in the absence of a vitiating factor provided that the mistaken party proves that the other party has committed a fault; see Fabre-Magnan, De l’obligation d’information dans les contrats, no. 345, p. 277.

55Civ 1, 4 February 1975, Bull civ I, no. 43, p. 41, JCP 1975. II. 18100, note Ch. Larroumet, D 1975. 405, note C. Gaury, RTDCiv 1975. 537, obs. G. Durry.

56Civ 1, 3 May 2000, Clin v. Mme Natali, the Baldus case, RTDCiv 2000, 566, note. The seller had sold some Baldus photos to the buyer at a public auction. The seller then sought out the buyer for another private sale at the same price (per photo) as at the auction. The seller was unaware that the Baldus photos were of value whereas the buyer was clearly aware of their value and made a considerable profit on resale. Nevertheless, the court held that the buyer was not under a duty to inform the seller of their value. See note B. Fromion-Hébrard, Petites Affiches, 5 December 2000, no. 242, p. 14, who suggests that the court has favoured a liberal view of contract. This decision counters the criticisms made by B. Rudden, RTDCiv 1985, 91, that French law is inefficient in its outlook.

57Rescission of a contract for lésion is open to the seller when the sale is sold at an undervalue, i.e. seven-twelfths of the (market) value.

(i)From the facts there has been no mistake in declaration under

§119 I BGB. Anatole did not know who the painter of the two pictures was and therefore intended to sell the works of an ‘unknown artist’. This is exactly what he has expressed; the declaration of intent and expression correlate. Nor would Anatole be able to claim that he had made a mistake as to the painting’s value; an item’s value -- even if it is a work of art -- is widely accepted as not amounting to an essential quality.58

According to case law, a painting’s authorship is regarded as a substantial quality of the painting.59 The German concept of ‘mistake’ means an ‘incorrect understanding of the reality of the situation’.60 Whether Anatole’s understanding of the situation diverges from reality is, however, uncertain. As long as the artist’s identity remains unclear it cannot be said that Anatole has made a ‘mistake’. A German court would nevertheless be unlikely to employ this argument.61 Rather, it would be guided by the fact that Anatole is an ‘impressionist specialist’. A mistake made by a specialist is to be classified differently from that made by an uninformed lay-person. One would therefore be inclined to regard the continuing doubt as to the paintings’ authorship as part of the balance of risk: if a specialist sells pictures, the origin of which specialists are in disagreement over, then he himself is to bear the risk of making an incorrect judgement. Some years ago, in a case exhibiting very similar facts, the BGH nevertheless allowed a claim for annulment on the ground of mistake.62

(a)Anatole may annul the contract of sale for both paintings which he has entered into with Bob as a result of his mistake relating to their authorship (§ 119 II). To annul the contract, Anatole can make a simple declaration (§ 143) addressed to Bob, he does not need to go to court as long as he is within the time limits (§ 121), the contract of sale is extinguished and Anatole may claim the surrender of the paintings together with title over them according to § 812 I 1 BGB. Nevertheless, Anatole is

58Cf. RG LZ 1926, 742, 744; BGHZ 16, 54, 57; BGH LM § 779 Nr. 2/2; BGH DB 1963, 285; BGH DB 1966, 379; critically on this T. Mayer-Maly, Festschrift zum 65. Geburtstag von Mario M. Pedrazzini (Bern, 1990), pp. 343 ff. and -- because of other reasons -- M. Adams, ‘Irrtümer und Offenbarungspflichten in Vertragsrecht’ (1986) ACP 186, 453, pp. 468 ff.

59BGHZ 63, 369, 371 = NJW 1975, 970; BGH NJW 1988, 2597, 2599.

60Staudinger/Dilcher, § 119 para. 1; similarly Larenz/Wolf, AT 664.

61The OLG Düsseldorf NJW 1992, 1326 avoided this argument, even though it would have been wholly appropriate; cf. however, E. Becker-Eberhard, ‘Der nicht beweisbar echte Elvis’ -- OLG Düsseldorf, NJW 1992, 1326, in: JuS 1992, 461, 463: ‘The mistake relating to the authenticity of the pictures requires that these are not authentic.’

62BGH NJW 1988, 2597.

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liable to compensate Bob for the damage he has suffered arising from his negative interest (§ 122 I) if he did not know or could not have known of Anatole’s mistake (§ 122 II). Negative interest ‘is the damage which the aggrieved party suffers by his futile reliance on the validity of the declaration of intent which has been extinguished by the annulment’.63 Bob should therefore be placed in the position he would have been in had he not relied on Anatole’s declaration. Therefore, if Bob has had to terminate negotiations for sale with a third party or where a contract of sale has already been concluded with a third party which he can now no longer perform, he may demand that Anatole compensate him for all costs arising to him under the contract, all claims of the third party and the amount of the purchase price64 he has already paid. § 122 limits the claim to the value of his positive interest. The damages demanded by Bob may therefore amount to the price the pictures were expected to fetch in America. In the worst possible scenario for Anatole he may of course demand the return of the paintings together with title over them (§ 812 I 1) but in return he must compensate Bob for the ‘breathtaking’ price which the latter has agreed upon in a contract with a third party.

If Bob has already transferred title to a third party it is no longer possible for Anatole to claim return of ownership. In this case, Anatole may claim compensation up to the value of the paintings (§ 818 II).65 In the absence of any other criteria, the extent of this claim under unjust enrichment will normally be determined by the price that Bob expects the paintings to fetch. As far as Bob is concerned, he may demand the refund of the purchase price he paid Anatole (§ 122 I).

(b) Alternatively, it is arguable that annulment is not possible, in accordance with the theory of the distribution of contractual risk. Anatole is not simply an amateur art-lover; he is a specialist. Of course, even specialists can make mistakes and their mistake may justify annulment. However, having regard to the uncertainty which still persists as to the identity of the paintings’ artist, great significance attaches to the seller’s

63Cf. RGZ 170, 281, 284; on this: Soergel/Hefermehl, § 122 para. 4; Staudinger/Dilcher, § 199 para. 6.

64The claim for the return of the counter-performance is contained in § 122 and therefore need not be pursued under the law of unjust enrichment (§ 818 III); Erman/Brox, § 122 para. 5; Staudinger/Dilcher, § 122 para. 11.

65On the discussion concerning the obligation to restore possession under lucrum ex negotiatione briefly: Palandt/Thomas, § 818 para. 14; extensively -- with criticism of the leading opinion: H. H. Jakobs, ‘Lucrum ex negotiatione. Kondiktionsrechtliche Gewinnhaftung’ in Geschichtlicher Sicht (Tübingen, 1992).

own expertise. One may therefore argue that Anatole was unaware of the suspicions other (French and American) experts entertained at the point in time when the pictures were sold to Bob. Therefore, he did not intend to assume any particular risk concerning the origin of the paintings. Yet precisely this dispute amongst these experts illustrates that it is not possible to ascertain the artist’s identity with any degree of certainty and that, possibly some time later, Anatole’s own opinion that the pictures were painted by an ‘unknown artist’ will be regarded as authoritative.66 From this point of view,67 Anatole’s mistake becomes one that relates to the market price the two pictures expect to fetch at that particular moment in time.68 By assessing the value himself, Anatole therefore bore the risk of making an incorrect evaluation. Due to this, it is not possible for him to claim annulment on grounds of mistake.

(ii) Anatole can also make a claim to vary the contract on the grounds that there is a failure of the basis of the transaction (Fehlen der Geschäftsgrundlage). Mistaken assumptions entertained by both parties may justify a claim to adapt the contract according to the principles of the doctrine of Geschäftsgrundlage. In contrast to annulment on the ground of mistake this claim would have the advantage for Anatole that the sale price would be adapted to the market price. Anatole would not have the paintings returned but he would not be bound to compensate Bob for the loss arising from his negative interest (§ 121 BGB). If one applies the BGH’s solution, which would allow annulment pursuant to § 119 II BGB, then it would be more sensible for Anatole to demand that the contract be adapted on the grounds of a failed basic contractual assumption. In all likelihood, he will be more interested in obtaining a good sale than having the paintings returned on the condition that he pays compensation.

From a mass of case law on this subject, German contractual theory has developed criteria governing the adaptation of the contract

66The evaluation of the numerous fakes of the works of A. Jawlensky is typical for this; cf. for example, A. Müller-Katzenburg, ‘Die Akte Jawlensky’ in Frankfurter Allgemeine Zeitung from 25.7.1998, 38 f.

67Similarly W. Flume, ‘Der Kauf von Kunstgegenständen und die Urheberschaft des Kunstwerks’ JZ 1991, pp. 633 f.; according to Flume in the case of an uncertain attribute rescission under § 119 II ‘ought’ not to be possible. Where a ‘discovery’ is later made then by analogy with the rule casum sentit dominus the person who is in possession of the work of art at the time should enjoy the benefit of an increase of value (634).

68The concept of an ‘insignificant’ mistake relating to value is similar.

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according to the principles laid down by the doctrine of a failure of the basis of the transaction which is now codified in § 313. For a start, there must be a gross disproportion in the relationship of exchange between the performance and counter-performance (breach of the principle of equivalent exchange).69 Our case fulfils this criterion: Anatole has received only a ‘moderate price’ for an extremely valuable pair of paintings. However, the next criterion causes problems. The limits of the contractual apportionment of risk must be exceeded by the loss or absence of a basis for the transaction.70 In contrast to § 119 BGB, the apportionment of risk when assessing the basis for the transaction plays a large role in practice.71 Anatole sold the paintings as the ‘work of an unknown artist’. The unknown identity of the painter will hardly have formed the basis of the transaction. Rather, the wording indicates that both Anatole and Bob did not intend to rule out the possibility that the true identity of the artist would come to light later. In that respect, both have assumed a particular risk concerning the authorship of the paintings.

One could also argue however, that the relationship of exchange agreed upon by Anatole and Bob forms the transaction’s basis. This basis would then fail once the American specialists had given their assessment and the value of the paintings had risen enormously. Mistaken assessments of the value or the price of an item made by both parties may in fact be taken into consideration as part of the doctrine of the basis for the transaction.72 Nevertheless, in our case the determination of the paintings’ sale price is inseparable from the assumption made concerning the artist’s identity. If Anatole assumed responsibility for the fact that the pictures ‘of unknown origin’ could also have been painted by an artist of world renown then, at the same time, he assumed the risk of making an incorrect estimation of their value. Thus, it is not possible to adapt the contract owing to the loss or absence of a basis for the transaction.

69Cf. Palandt/Heinrichs, § 242 para. 125 (Wesentliche Änderung); MüKo/Roth, § 242

para. 518 ff. (Objektive Unangemessenheit); Larenz/Wolf, AT 715 (Wesentliche Abweichung). Now § 313 I demands that the circumstances have changed fundamentally

(. . . schwerwiegend verändert).

70Palandt/Heinrichs, § 242 para. 126 ff.; MüKo/Roth, § 242 para. 537 ff.; Larenz/Wolf, AT 715 f. Now § 313 I: ‘. . . as far as adherence to the contract is unreasonable with regard to all circumstances, especially the balancing of risk intended by law or contract’.

71Cf. for example, BGHZ 74, 373; BGHZ 101, 152; BGHZ 107, 92, 104; BGH NJW 1992, 2691.

72In the famous cases RGZ 90, 268 (‘Altmetallagerfall’), RGZ 94, 65 (‘Börsenkursfall’) and RGZ 105, 406 (‘Rubelfall’) the Reichsgericht still held that rescission (§ 119 I) was possible (doctrine of the ‘extended mistake in content’); cf. however, BGH LM 1 on

§ 242; BGH MDR 1960, 580; OLG Köln WM 1991, 1463 = NJW-RR 1991, 1266. Further information in MüKo/Roth, § 242 paras. 636 and 666.

Greece

If the paintings prove to be authentic works of Degas, or one of his pupils, Anatole can ask for the annulment of the sale and the contract of transfer of ownership73 on the grounds of mistake as to quality of the thing (art. 142 AK).74 Mistake as to quality does not suffice for annulment; a fundamental mistake is required. The fundamental nature of the quality will be decided on the basis of two criteria, one objective, one subjective (art. 142 AK). Anatole’s mistake is objectively fundamental as it relates to an important quality for the whole legal act75 according to good faith and common usage. The authenticity of a work of art is considered an important quality on the basis of good faith.76 The subjective criterion is also present here. It is clear that Anatole would not have agreed to sell the paintings, at least under these terms, had he known the true state of affairs.

If the paintings are finally judged not to be works of Degas, nor one of his pupils, and their value still remains much higher than what Bob paid, Anatole is not entitled to seek the annulment of the contracts on the grounds of his own mistake. His mistake concerns the economic value of the thing, which according to the prevailing view77 is not a quality in the sense of art. 142 AK. Although this opinion is criticisable, since a mistake as to the value of the thing may result from a mistake as to quality, in this case it is correct. The paintings’ high price does not

73The Greek Civil Code, following the German legal system, distinguishes between promissory contracts, by which the parties promise and bind themselves to perform an obligation and disposition contracts by which the disposal, i.e. transfer, charge, abolition or alteration of a right, is effected.

74Article 142 AK lays down that: ‘A mistake as to the qualities of a person or thing shall be considered an operative mistake if such qualities are, according to the agreement of the parties or on the basis of good faith and common usage, of such importance in regard to the whole of the act that the mistaken person if he were aware of the true situation would not have entered into the act.’

75The term ‘legal act’ is somewhat inelegant in English but is retained to denote the conception of contracts as ‘legal acts’ known to certain civil law countries. For the sake of convenience and elegance, this term has often been replaced by that of ‘contract’.

76A. Gazis, General Principles of Civil Law, Juridical Acts (1973), p. 68.

77Ap 268/1974, NoV 22, 1269; Gazis, General Principles of Civil Law, vol. C, p. 65; D. Bailas, ‘Error as to the qualities a thing’ in Miscellany in Honour of Maridakis (Athens, 1963), vol II, p. 335; I. Karakatsanis, in Ap. Geordiadis and M. Stathopoulos, Civil Code AK

138--157 (Athens, 1978), AK 142 n. 4; K. Simantiras, General Principles of Civil Law (4th edn, Athens-Thessaloniki, 1988) n. 727; I. Spyridakis General Principles, (Athens-Komotini, 1987), p. 602; see, however, A. Georgiadis, General Principles of Civil Law (2nd edn, Athens-Komotini, 1997), p. 426; M. Karassis, Manual of General Principles of Civil Law. Law of the Judicial Act (Athens-Komotini, 1996), p. 103; D. Klavanidou, Error as to the Qualities of the Thing in Sales (Thessaloniki, 1991), p. 18; N. Papantoniou, General Principles of Civil Law (3rd edn, Athens, 1983), p. 396.