!!Экзамен зачет 2023 год / The Law of Obligations

liability on the ground of error is a powerful legal weapon, and one expects the law to have granted some sort of protection to the reasonable reliance of the other party. Modern English law, for instance, attaches great significance to the position of the promisee. Despite their frequent use of will-related terminology70 and, particularly, their obvious delight in the catch-phrase "consensus ad idem", as borrowed from Pothier, the English courts traditionally look at the expression of the will in order to determine whether (and with what content) a contract has been concluded. ". . . [F]or it is common learning that the intent of a man cannot be tried, for the Devil himself knows not the intent of a man", was the pragmatic insight of Brian CJ as far back as 1478,71 and more recent writers have explained:

"[T]he current phrase 'the intention of the parties governs the contract', is really only true to this extent; that it governs the contract where both parties arc agreed what the intention was. Where there is a dispute as to the intention, the contract, or rather the contractual liability, is governed by the intention, as it is presumed from that sense which, under all the circumstances, the judge thinks ought fairly to be attached to the promise."72

This "objective test" approach is closely related to, if not derived from, estoppel by representation:73 a party is bound by his declaration, because such declaration — whether or not it properly represents the declarant's true intention—is apt to engender reliance in the person of the addressee.74 Of course, such reliance deserves protection only where it is reasonable. Thus, in particular, the promisor's mistake must not have been attributable to the promisee himself. Contrary to all Continental legal systems, English law has in fact made up a special category of the cases where the promisee has induced the promisor's

70Cf. e.g. Atiyah, Rise and Fall, pp. 407 sqq., quoting as an example Kindersley VC in Haynes v. Haynes (1861) 1 Dr & Sm 426 at 433: "When both parties will the same thing, and each communicates his will to the other, with a mutual agreement to carry it into effect, then an engagement or contract between the two is constituted."

71Anon. "(1478) YB17EdwIV, Pasch. f. 1, pi. 2", in: C.H.S. Fifoot, History and Sources of the Common Law (1949), pp. 252 sqq. (253).

"72 William Markby, Elements of Law (4th ed.. 1889), n. 622. Cf. also e.g. Lord Wright, in

Norwich Union Fire Insurance Society Ltd. v. WH. M. Price Ltd. 11934] AC 455 at 463: "[T]he test of intention in the formation of contracts . . . is objective; that is, intention is to be ascertained from what the parties said or did"; Furmston, in: Cheshire, Fifoot and Furmston, Law of Contract (11th cd., 1986), pp. 27 sq.: "Agreement, however, is not a mental state but an act and, as an act. is a matter of inference trom conduct. The parties are to be judged, not by what is in their minds, but by what they have said or written or done. . . . The function of an Englishjudge is not to seek and satisfy some elusive mental element. . . ." Further on the objective theory of contract and on the development from intent to responsibility, cf. Dalton, (1985) 94 Yale LJ 1039 sqq.; for Germany, cf. Gerhard Kege), "Verwirkung, Vertrag und Vcrtrauen", in: Festschrift fiir Klemens Pleyer (19B6), pp. 528 sqq.

73But see e.g. Treitel, Contract, p. 230.

74Cf. the leading case of Smith v. Hughes (1871) LR 6 QB 597 at 607: a party is bound, if, "whatever |his] real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that the party upon that belief enters into a contract with him". (Extreme) consequence: "It is even conceivable that a contract may be formed which is in accordance with the intention of neither party" (Willislon, quoted by Dalton. (1985) 94 Yale LJ 1043).

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mistake by some misrepresentation (innocent or otherwise).75 Such misrepresentation renders the contract voidable at the option of the promisor.76 Also, a mistake by one party may be operative (that is, have the effect of negativing consent) if it is known to the other party.77 But apart from that, a mere unilateral mistake78 does not normally affect the validity of the contract. English law thus provides a very farreaching protection for the innocent promisee.79 Arguably, it even overshoots the mark.80 Modern German law, for instance, allows rescission of a contract on the basis of error much more readily,81 but imposes a duty on the rescinding party to compensate the party, to whom the declaration of intention had been made, for the damage sustained in relying upon the validity of the contract.82 This claim for compensation, incidentally, is not based on fault and cannot therefore be regarded as a (statutory) emanation of the culpa in contrahendo doctrine.83 It finds its justification in the fact that the invalidity of the contract is attributable to the "sphere" of the maker of the declaration.84

(b) The position in Roman law

None of these devices was employed by the Roman lawyers. Neither was the promisor only relieved of his contractual obligation when the promisee did not deserve protection, nor was the latter granted a claim to recover his reliance interest. Nor, as a rule, did it matter whether the promisor could be blamed for his mistake; whether, in other words, the error was excusable or not.85

75For details, see Treitel, Contract, pp. 254 sqq.

76It is usually said that the rcpresentee may rescind the contract. On the various meanings of "rescission" c{. Treitel, Contract, pp. 283 sqq.

77Not every mistake has this effect: mistakes as to the person and as to the subject matter only if they are fundamental, mistakes as to the terms of the contract even though they may

not have been fundamental. For details, sec Treitel, pp. 224 sqq. 7f * As opposed to one which is common to both parties.

79In short, then, "Anglo-American law solves the problem of protecting the unerring

party by giving relief only if there is no unerring party to the contract" (Ti mothy Hoff, "Error in the Formation of Contracts in Louisiana: A Comparative Analysis", (1978-79) 53

Tulane LR 374).

80So, too, Friedrich Kcsslcr, Edith Fine, "Culpa in contrahendo. Bargaining in Good Faith, and Freedom of Contract: A Comparative Study", (1964) 77 Harvard LR 429; Diesselhorst, Sympotica Wieacker, pp. 206 sqq.

81§ 119 I: "A person who, when making a declaration of intention, is in error as to its content, or did not intend to make a declaration of such content at all, may rescind the declaration if it may be assumed that he would not have made it with knowledge of the facts and with reasonable appreciation of the situation." § 119 II: "An error as to the content of the declaration is regarded in the same way as an error as to those characteristics of a person or a thing which arc regarded in business as essential."

82§ 122 BGB.

83Cf. infra, pp. 613 sq.

84Claus Wilhelm Canaris, Die Vertrauenshaftung im deutschen Privatrecht (1971), pp. 479 sqq., 532 sqq.

*Cf. e.g. Kaser, RPrl, p. 242.

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About the reasons for this obvious lack of discrimination one can only speculate. First of all, it must, of course, be kept in mind that not every error excluded consent. The mistake had to relate to one of the essential elements of the contract. More particularly, the narrowness of the Roman doctrine of error in substantia has been described "as startling from a modern perspective".86 Even mistakes regarding essential characteristics of the object of the contract, which could greatly disadvantage the purchaser, were ignored: by whom it had been made, what capacities or attributes it possessed, whether it was able to bear fruit, etc.87 Thus, the ambit of operative errors in itself represented a kind of compromise between the interests of both parties concerned. Secondly, the potential for a deviation between intention and declaration was smaller in Roman law than it is today. Telegraphy, for instance, did not exist and the problems arising from the incorrect transmission of a telegram became a matter of concern only in the second half of the 19th century.88 Furthermore, we have repeatedly stressed89 that sale in early Roman law, being essentially a market transaction, was tantamount to cash sale. It was concluded inter praesentes, and the conclusion of the contract and the execution of the mutual performances necessarily coincided. It is obvious that errores in negotio, in pretio or in corpore are much less likely to occur (if not virtually impossible) where vendor and purchaser are present90 and immediately exchange their mutual performances. By the time of the later Roman Republic, the formless emptio venditio had, of course, become a fully executory contract. But even then, and throughout the time of classical Roman law, sale to ultimate consumers in actual practice probably remained a transaction that was normally immediately executed. By and large, only merchants engaged in long-distance trading. They, in turn, appear to have formed reasonably close-knit

86Frier, (1983) 100 ZSS 274.

87Cf. today e.g. § 119 II BGB, covering every attribute or characteristic of the object of the contract relevant for the determination of its value (except the value itself).

88See, for example, the discussion by Rudolf von Jhering, "Culpa in contrahendo, Schadensersatz bei nichtigen oder nicht zur Perfektion gelangten Vertragen", (1861) 4JhJb 106 sqq., stimulated by a decision of the District Court ("Landgericht") of Cologne dating from 1856 and applying French law; for a report of this decision, dealing with the incorrect transmission of a telegraphic order (the recipient was instructed to buy rather than sell certain shares), see (1859) 19 Zeitschrifi for deutsches Rechl utid deutsche Rechtswissetischaft 456 sqq. This case raised the question of the protection of the reasonable reliance of the recipient of the telegram. For contemporary pandectist doctrine it posed a major problem, since a contractual claim could not be construed in view of the fact that the contract was void; nor could a delictual clai m be granted, since Aquilian liability for pure economic loss was generally rejected (cf. infra, pp. 1036 sqq.) Jhering's culpa in contrahendo doctrine and Bahr's declaration theory (cf. infra, note 188) were attempts to grapple with this difficulty. The Latidsgericht of Cologne could resort to the famous general clause of delictual liability (art. 1382 code civil; on which, see infra, pp. 906, 1036) in order to achieve a satisfactory result.

89Cf. supra, pp. 237 sqq.

90In England, for instance, the question has been discussed whether an error in persona is possible inter praesentes; for details, see Treitel, Contract, pp. 225 sqq.

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groups, developing and maintaining their own standards of trade.yi Within an established market, as Frier argued recently,92 merchants tend to look beyond the single transaction and to be motivated by the desire for repeat orders. They realize that it is to their own advantage to honour their undertakings without much wailing and lamenting. Both vendors and purchasers are usually keen to engender confidence and to build up a reputation for reliability. Under these circumstances, the possibility of attacking the validity of a contract on the ground of mistake was unlikely to lead to an unacceptable amount of confusion and commercial inconvenience.

Penultimately, it must be remembered that we are dealing here with a gradual development from a strictly objective, declaration-oriented approach towards a more flexible and individualistic one.93 This development was in full swing during the time of classical Roman law. Even at the time of Ulpian, controversies still persisted.94 Only slowly did the idea gain ground that a unilateral mistake can vitiate the contract. Thus, the picture presented over the previous pages is representative only of late classical jurisprudence. From this time onwards any appreciation for certainty of the law, for the inner discipline connected with form and formalism and for generally accepted social standards, faded away very quickly, anyway, and thus one could hardly expect post-classical jurisprudence to develop criteria which were suitable for checking the increasing emphasis on the intention of the parties.

9.Iuris ignorantia nocet, facti ignorantia non nocet

(a)Error iuris nocet: the position in Roman law

Finally, however, there was one kind of mistake which normally the Roman lawyers do not seem to have regarded as excusable, and that was the error iuris. "Regula est iuris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere", we read in Paul. D. 22, 6, 9 pr.95 The same rule has come down to us in slightly different formulations: iuris ignorantia non prodest wrote Labeo,96 iuris error nulli prodest, Paul in his commentary on the edict.97 Error and

91Frier, (1983) 100 ZSS 293.

92(1983) 100 ZSS 289 sqq. (291).

93Cf. in general e.g. Heinz Hubner, "Subjektivismus in der Entwicklung des Privatrechts", in: Festschrift fur Max Kaser (1976), pp. 715 sqq.

^Cf. Ulp. D. 18, 1, 9, 2.

9D On this text cf. Schmidlin, Rechtsregelti, pp. 36 sqq.; Laurens C. Winkel, Error iuris nocet—

Rechtsdwaliny als rechtsordeprobleem (1982), pp. 149 sqq.

'*' Lab. /Paul. D.'22, 6, 9. 3.

'л Paul. D. 41, 4, 2, 15. On error iuris in Roman law generally (apart from the recent book by Winkel), cf. Voci, L'errore, pp. 211 sqq.; Paul van Warmeto, "Ignorantia iuris", (1954) 22 TR 1 sqq.; Zilletti, op. cic, note 19, pp. 254 sqq.; Theo Mayer-Maly, "Error iuris", in: Ius

Humanitatis, Festschrift fur Alfred Verdross (1980), pp. 147 sqq.; Henryk Kupiszewski, "Ignorantia iuris nocet", in: Sodalitas, Scritti in onore di Antonio Guarino, vol. Ill (1984), pp. 1357 sqq.

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ignorantia are obviously used interchangeably.48 Furthermore, the rule appears to be of considerable antiquity, for Labeo already advocated a restriction:

"Sed iuris ignorantiam поп prodesse Labeo ita accipiendum existimat, si iuris consulti copiam haberet vcl sua prudentia instructus sit, ut, cui facile sit scire, ei dctrimento sit iuris ignorantia. . . ."w

Originally it appears to have been taken for granted that a Roman citizen should know the law; after all, until the days of Cicero, schoolboys had to learn the text of the XII Tables by heart.100 By that time, however, the ius civile, as contained in this venerable codification, had been overlaid with a number of individual enactments as well as by a whole body of law developed by the praetor. Labeo therefore confined the assumption to those who had legal advice readily available or who were themselves competent in law.101 A layman could hardly be expected any longer to find his own way through either the ius honorarium or the lawyers' interpretation of the ius civile.102 Neratius' argument in D. 22, 6, 2 therefore appears to be somewhat unrealistic: an error in iure (as opposed to ignorantia facti) is irrelevant, because the law can and should be definite (whereas the determination of factual circumstances may baffle even the homo prudentissimus).103 Yet it is not too difficult to reconcile Neratius' reasoning with the restrictive tendency pursued by Labeo (and others): error iuris nocet applies not because the law is definite (or limited?; it is difficult to gauge the exact meaning of ius "finitum"),104 but only if that is in fact the case. In other words: where the law is not (easily) determinable (for a layman), a mistake of law can possibly be regarded as excusable. It is in conformity

''8 Cf. also Mayer-Maly, Festschrift Verdross, p. 1э0.

09 Lab./Paul. D. 22, 6, 9, 3; for details, see Winkel, op. rit., note 95, pp. 113 sqq.

100Cf. Alfred Pernicc, Labeo, vol. II, 1 (2nd ed., 1895), p. 424.

101At the end of the fragment the comment, "quod raro accipiendum est", has been added (by Paul?; in post-classical times?), the intent of which is not entirely clear. Cf. Christian Friedrich Miihlenbruch, "Uber iuris et facti ignorantia and deren Einfluss auf Rechtsvcrhaltnisse", (1821) 2 Archivfiir die civilistisclie Praxis 382 sqq.; but sec Mayer-Maly, Festschrift Verdross, p. 151.

""Late Republican sources paint a discouraging picture of indefiniteness and insecurity in the judicial system of Rome: the procedural forms of the Edict shifted constantly; rhetorical advocacy remained supreme in harsh adversary trials; broad social commitment to minimum standards of formal justice was still lacking; public ignorance of law was widespread . . .; and, at the margin of this pandemonium, a handful ofjurists struggled to establish a place for their tenuous legal science": Frier, Roman Jurists, p. 183. All this changed as a result of the "revolution" of Roman jurisprudence during the late Republic (cf. infra, p. 627, note 33); this "revolution" brought about the emergence of the concept of "autonomous law" (Frier, pp. 188 sqq.) and entailed a strong movement towards legal security (on which, see Frier, pp. 188 sqq,).

103"In omni partc error in iure поп eodem loco quo facti ignorantia haberi debebit, cum ius finitum et possit esse et debcat. facti interpretatio plerumque etiam prudentissimos fallat." Lauterbach, Collegium theoretico-practimm. Lib. XXII, Tit. VI, IV added that the interpretatio facti is a matter "ubi tamen ad minimum septem circumstantiae considerandae veniunt, scilicet, Causa, Persona, Locus, Tempus, Qualitas, Quantitas ct Eventus".

104Cf. Vincenzo Scarano Ussani, Valori e storia nella cultura giumdica fro Nerva e Adriano

(1979), pp. 5 sqq.; Winkel. op. cit., note 95, pp. 81 sqq.

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with this kind of argument that a hard line on error iuris was usually taken with regard to specific, fairly recent acts of legislation1"5—as, for instance, decrees of the Senate such as the SC Silanianum,106 the SC Macedonianum107 or the SC Velleianum.108 The constitutio Antonini-ana

led to a flurry of problem cases (and induced a policy of tighteningup),ll)y for many of those who had been granted Roman citizenship

lacked a detailed knowledge of the Roman laws.110 But it was only in post-classical times that the emperors, concerned about the enforcement of the law, laid down a general duty to know the law: "Leges sacratissimae, quae constringunt omnium vitas, intellegi ab omnibus debent",111 or, to quote the interpretatio to Codex Theo-dosianus 1, 1, 2: "Leges nescire nulli liceat, aut quae sunt statuta contemnere."112 Certain groups of persons, however, were exempted from these stringent requirements: women, soldiers, minores XXV annis and rustici113 (i.e. people stricken by rural simplicity).114

The maxim of error iuris nocet is based on the idea that one should know the law: "[non] stultis solere succurri, sed errantibus."115 At least in classical Roman law, however, this was not considered to be a hard- and-fast rule. Its application depended to a certain extent on what could reasonably be expected of the people subject to the law.116 The treatment of error iuris therefore demonstrates that the question (broadly speaking) of the reasonableness of the mistake did not necessarily remain entirely irrelevant. One may thus be justified in assuming that the other leg of Paul's regula in D. 22, 6, 9 pr. (facti ignorantiam non nocet) was also not always and necessarily applied without any regard to what could reasonably be expected.117

(b) Error vincibilis and invincibilis (ius commune)

In any event, the authors of the ius commune proceeded to restrict the relevance of ignorantia (or error) facti accordingly. By the time of the

Kb Mayer-Maiy, Festschrift Verdress, pp. 161 sqq. 106 Ulp. D. 29, 5, 3, 22.

1117 Ulp. D. 14, 6, 3 pr.; Pomp. D. 14, 6, 20; Ulp. D. 17, 1, 29, 1. 10Я С 5, 6, 1 (Sev. et Ant.).

109Mayer-Maly, Festschrift Verdross, pp. 165 sq.; Winkcl, op. cit., note 95, pp. 277 sq.

110On how imperial constitutions were published (and thus brought to the knowledge of those subject to them), cf. Fritz Schwind, Zur Fraqe der Publication im romischen Recht (2nd

ed., 1973), pp. 155 sqq.

Winkel, op. cit., note 95, pp. 275 sqq.

111 They were allowed not to know the law (ius ignorare permissum est): cf. Paul. D. 22, 6, 9 pr.

M*On rusticitas, e.g. C. 2, 2, 2 (Gord.) and Mayer-Maly, (1976) 27 lura 2 sqq.; idem, "Rusticitas", in: Studi in onore di Cesare Sanfilippo, vol. I (1982), pp. 309 sqq.

115Paul. D. 22, 6, 9, 5 in fine.

116On the different restrictive strategies pursued, and criteria proposed by the Roman lawyers, see Winkel, pp. 79 sqq.

117Cf. also Kaser, RPr I, p. 242; Honsell/Mayer-Maly/Selb, p. 125-

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usus modernus, the opinion had gained ground that a mistake relating to factual circumstances could be taken into account only if it was invincibilis118 (or probabilis),119 that is, ifit could have been avoided by taking proper care. But what was to be regarded as proper care under these circumstances? By and large, it was held that gross negligence made the error inexcusable: "Error iustus est ille qui caret latissima et lata culpa."120 The ignorance must not be based on negligentia crassa121 or, as others put it, it must not be "supina et affectata".122 Various attempts were made to refine these criteria. Thus, particularly, a distinction was drawn between ignorantia facti proprii and ignorantia facti alieni.123 Of one's own personal sphere one could, as a rule, be expected to have a clear and detailed picture; exceptions were, however, made for very complicated affairs and propter memoriae imbecilitatem:124 ". . . in iis quae antiqua sunt, aut valde intricata, facti proprii errorem tolerabilem esse ac excusare."125 Matters falling outside one's own sphere one could, of course, not be required to know equally well. But even here an allegation of mistake could sometimes be of no avail, for instance, if the fact was known by all, or most, "in loco"126 or "in ea civitate"127 or if there had been a specific reason to make inquiries.

The distinction between own and other matters, incidentally, dates back to Pomponius, who had, however, introduced it in the context of mistakes relating to law.128 This is quite typical of the specific relevance and influence of the Digest title 22, 6 on the development of the law of contract. An error iuris as such occurs but rarely when a contract is concluded.129 Predominantly, the parties err about factual circum-

1IH Augustin Leyscr, Meditationes ad Pandectas, Spec. CCLXXXIX, I and II; Gliick, vol. 4, p. 164. The criterion of an error vincibilis appears to go back to Cuiacius (cf. Hiibner, Festschrift fur Kaser, p. 722), who had introduced it in respect of error iuris.

119Voet, Commemarius ad Pandectas, Lib. XXII, Tit. VI, VI.

120Blasius Altomarius, as quoted by Coing, p. 417. Cf. further Peter Haupt, Die Entwicklung der Lehre vom Irrtum beim Rechtsgeschaft seit der Rezeption (1941), pp. 17 sqq. For the Pandectists, see Windscheid/Kipp, § 79 a.

121Lauterbach, Collegium tlieoretico-practicum. Lib. XXII, Tit. VI, VIII.

Syntagma, Exerc. XXIX, Lib. 22, tit. 6, LUX sqq.; Voet, loc. cit. 124*Struvc, Syntagma, Exerc. XXIX, Lib. 22, Tit. 6, LX.

125 Voet, Commetttaritts ad Pandectas, Lib. XXII, Tit. VI, VII.

X2f' Lauterbach, Collegium theoretico-practicum, Lib. XXII, Tit. VI, VIII.

127Voet, loc. cit.

128Pomp. D. 22, 6, 3.

129Both Haupt (infra note 130) and Coing (p. 418), incidentally, draw attention to the fact that the authors of the ius commune dealt with ignorantia inns et facti in the form of a general doctrine (covering all areas of the law, including, particularly, criminal law). To what extent they specifically intended their propositions to be applied to the law of contract is occasionally unclear. In modern (German) criminal law the distinction between error iuris and error facti continues to be of great significance; cf. §§ 16 sqq. StGB and (e.g.) H.-J. Rudolphi, Unrechttbewusstseirt, Verbotsirrtum und Vermeidbarkeit des Verbotsirrtums (1969). In South African criminal law, the Appellate Division has recently set the cat among the

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stances. But error iuris tended to be taken as the prototype of an error attributable to negligentia crassa and hence inexcusabilis. A generalization of this rationale provided the dogmatic basis for limiting the rule of ignorantia facti non nocet to cases of ignorantia invincibilis.130

(c) Error iuris (ius commune and modem law)

But what became of error iuris itself?131 The glossators regarded a person who did not know the law as unworthy of legal protection.132 The moral theologians were somewhat more lenient; a legal norm, they argued, can bind only those to whom it is known.133 Nevertheless, the error iuris continued to be discriminated against; "error iuris regulariter non praesumitur, sed scientia" became a widely accepted rule of procedure, which lived on in France in the form of the famous adage "nu/ n'est cense ignorer la /of'.134 Some of the writers of the usus modernus questioned the distinction between ignorantia iuris and facti. Augustin Leyser abandoned it in favour of the more basic categories of error vincibilis and invincibilis.135 Lauterbach advocated an exception from error iuris nocet "in juribus difficilioribus".136 To 18th-century enlightened authoritarianism, on the other hand, "error iuris nocet" was bound to appeal. Condonation of ignorantia iuris militated against the educational and philosophical ideals of the time; and, in fact, the very idea of a codification, of a comprehensive and systematic reorganization of law (and society!) along the lines of natural reason, that became a hallmark of the age, aimed at making the law accessible, at instructing all subjects (and thus, indirectly, promoting their welfare) and at informing them about their rights, their duties and their position

pigeons in S v. De Blom 1977 (3) SA 513 (A) by suddenly reversing the principle of error iuris non excusat. The decision has remained controversial (cf. recently, for instance, 5 v.

Wagiines (Pty.) Ltd. 1986 (4) SA 1135 (N)). l3t> Haupt, op. cit., note 120. p. 20.

131 For what follows cf. Theo Mayer-Maly, "Rcchtsirrtum", in: HRG, vol. IV, col. 302 sqq.; as far as modern South African law is concerned, c{. Paul van Warmelo, "Regsdwaling", (1975) 38 THRHR 207 sqq.

"" Cf. e.g. The Summula de iuris et facti ignorantia of Bulgarus ("Quia leges ab omnibus sciri debent et intclligi, qui ignarus iuris in aliquo labitur, indignus videtur auxilio"), printed on pp. 244 sqq. and commented upon on pp. 73 sqq, in Hermann Kantorowicz, Studies in the Glossators of the Roman Law (1938).

113Cf. still e.g. Grotius, De jure belli ac pads. Lib. II, Cap. XX. XLI11: "Sicut ergo circa leges civiles eos excusamus qui legum notitiam aut intellectum non habuerunt, ita et circa naturae leges par cst eos excusan quibus am ratiocinationis imbecillitas aut prava educauo obstant. Nam ignorantia legis sicut inevilabilis si sit tollit peccatum."

114Cf. Hans Kicfner, "Die gegenwartige Bedeutung dcr Maxime 'Nul n'est cense ignorer la loi"\ in: E. v. Caemmerer, K. Zwcigert (eds.), Deutsche Latidesreferate гит VII.

huernationalen Kongress fiir Rechtsvergleichung in Uppsala (1966), pp. 87 sqq. The Code Civil presupposes, but does not spell out, this maxim.

135 Meditationes ad Pandectas, Spec. CCLXXX1X, I sqq. ПГ) Collegium theoretico-practicum. Lib. XXII, Tit. VI. XIII.

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within society.137 Both the Prussian General Land Law and the Austrian ABGB therefore, not surprisingly, contain a rule to the effect that ignorance of a duly published law cannot be excused.138 Many authors

of the 19th century, again, adopted a more sceptical attitude towards the knowledge of the law one could expect of the general public,139 and

the BGB abandoned the distinction between error iuris and error facti altogether.140 Today, the problem of ignorantia iuris is particularly topical141 in view of the unprecedented flood of legislation emanating from our modern parliaments.142

10. The development of the modern error doctrine

(a) Usus modernus pandectarum

The sale of Stichus who was supposed to be Pamphilus, the problem of vinegar sold as wine, transactions concerning "golden" rings and "silver" tables, even the slave who is no longer a virgin but "iam mulier": the whole Roman repertory of cases was mulled over time and again by the authors of the ius commune. Together with these stock examples, all the solutions proposed and all the distinctions drawn by the Roman lawyers were faithfully preserved. Down to the end of the 18th century, the discussion of mistake in the formation of a contract did not receive any fundamentally new impulse, but dogmatized what was contained in the pages of the Digest.143 A contract requires consensus, and "error excludit consensum".144 Thus, a contract affected by error must be invalid.145 This was the generally accepted starting point. But not every error could have this effect. This was an equally unquestioned proposition. It had to be fundamental in the sense

137For details, see, for instance, Franz Wieacker, "Aufstieg, Bliite und Krisis der Kodifikationsidee", in: Festschrift fur Gustav Boehmer (1954), pp. 34 sqq.; Pio Caroni, "Kodifikation", in: HRG II, col. 907 sqq.

138§ 12 Einleitung PrALR; § 2 ABGB.

139Cf. e.g. Savigny, System, vol. Ill, p. 336; Windscheid/Kipp, § 79 a.

140South African law appears to have moved in a similar direction; cf. Van Warmelo, (1975) 38 THRHR 207 sqq. According to the Louisiana Civil Code, errors of law usually have the same effect on contracts as errors of fact and invalidate a contract "where such error is its only or principal cause" (art. 1846): Hoff, (1978-79) 53 Tulane LR 370 sqq.

141Cf. e.g. Theo Мауег-Maly, "Rechtsirrtum und Rechtsunkenntnis als Probleme des Privatrechts", (1970) 170 Archiv Jur die tivilistische Praxis 133 sqq.

125jdhrigen Bestehen der Juristischen Geseilschaft zu Berlin (1984), pp. 423 sqq.; Josef Isensee,

"Mehr Recht durch weniger Gesetze", 1985 Zeitschrift fur Rechtspolitik 139 sqq.; Dieter Strempel (ed.), Mehr Recht durch weniger Gesetze (1987), passim.

143For details cf. Peter Haupt, Die Entwicklung der Lehre vomIrrtum beint Rechtsgeschaft seit der Rezeption (1941), pp. 2 sqq.; cf. also the brief surveys by Coing, pp. 416 sqq., and Joubert, Contract, pp. 75 sq.

144Cf. e.g. Lauterbach, Collegium theoretico-practkum. Lib. XVIII, Tit. I, CV ("Error . . .

voluntatem excludit, ac consensui est contrarius"); Voet, Commentarius ad Pandectas, Lib. XVIII, Tit. I, V ("Obest [consensui] error").

145No need existed to draw a distinction between dissensus in the narrow sense (mutual mistake) and (unilateral) mistake.

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that it had to relate to the main content of the contract.146 Thus, the parties must be ad idem as to each other's identity, as to the nature of their transaction and as to its subject matter (in the case of sale—still the standard example—object and price). Or, the other way round: consent is negatived by error in negotio, error in persona, error in corpore (plus error in substantia) and (where appropriate) error in pretio.147 In these cases the rule of errantis voluntas nulla est was applied. An "error circa accessoria", on the other hand, was irrelevant. Likewise, a mistake about the quality, the value or the quantity of the object of the sale and (though this was very rarely expressly stated)148 a mistake relating to the motive inducing a party to enter into the contract did not affect its validity.149

Certain features of the Roman doctrine of error were as vexing for the authors of the ius commune as they are for us. Error in substantia is the prime example. Much ingenuity was spent in an attempt to harmonize the sources and to draw the line between (irrelevant) mistakes as to the quality of the object of sale, and operative ones as to its substance or material.15" Another dogmatic difficulty arose from the fact that an error in substantia was relevant in sale but did not matter as far as stipulations were concerned.151 This discrepancy was often resolved by pointing out that in the latter case the recipient of the performance, who had been labouring under the mistake, would normally not be interested in the invalidity of the transaction. After all, he benefited from the stipulation (a unilaterally binding contract!), and

l4r' ". , . circa id, quod (contrahentes) principaliter respiciunt": cf. e.g. Lauterbach,

Collegium theoretico-practictmt. Lib. XVIII, Tit. I, CV.

14 Cf. e.g. Lauterbach, loc. cit., CVI sqq.; Voct, Commentarius ad Pandectas, Lib. XVIII, Tit. I, V; Gliick, vol. 4, pp. 147 sqq. This is still the position in modern South African law: cf. e.g. Joubcrt, Contract, pp. 77 sqq.

14M But see e.g. Pothier, Traite des obligations, n. 20.

144 That does not mean that all these types of errors were necessarily entirely irrelevant. A motive, tor instance, could have become part of the content of the contract. Under certain circumstances, the clausula rebus sic srantibus (ct. supra, pp. 579 sqq.) could be invoked (in Louisiana error in motive can invalidate the contract in these cases: cf. supra, p. 582, note 260). An error concerning the value of the object ot sale could be taken into consideration under the rules relating to laesio enormis; the medieval authors in particular dealt with many error problems from this point of view (Feenstra, (1974) 48 Tttlane LR 855). And as far as mistakes about the quality of the object of sale were concerned, the aedilitian remedies (as incorporated into the actio empti) provided the answer. The exact delimitation between the respective areas of application ot the rules relating to mistake and the remedies for latent defects remains a matter of contention in modern German law: ct. e.g. Harm Peter Westermann, in: Miinchener Kommentar, vol. Ill, 1 (2nd ed., 1988). § 459, nn. 73 sqq. Of course, the problem that the same fact may be looked upon as an error in substantia or as 3 latent defect appears in other civilian jurisdictions too. For Louisiana ct. Hoff, (1978-79) 55

Tulane LR 357.

1511 Cf. in particular Cuiacius, Comment, in Tit. I. Dc contrah. empt. Lib. XVIII. Digest., Ad, L. IX, whose comments appear to have gained considerable influence (Haupt, op. cit., note

120. p. 11).

151 Cf. supra, p. 600.

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