!!Экзамен зачет 2023 год / The Law of Obligations

if he did not receive what he had believed he would receive, he should at least remain entitled to the object as it in fact existed.152

(b) Error in persona

Only occasionally did one leave the well-trodden ground and introduce new ideas or distinctions. Thus, some writers argued that only the party in error should be permitted to invoke the invalidity of the transaction:153 a rule that had been introduced in someone's favour should not be allowed to be turned to his disadvantage.154 Probably the most interesting dispute related to the error in persona. Some 18thcentury authors recognized that the principle of error excludit consensum had been taken much too far in this regard.155 Very often in everyday life the parties to a contract are not at all concerned about exactly whom they are contracting with, and their interests do not then require the transaction to be null and void in case of error in persona. On the contrary: invalidity would be inconvenient and undesirable.156 Hence the attempts to limit the range of operative errores in persona to those cases where the identity of the other party had been essential for the conclusion of the contract: consideration of the person must form "an ingredient in the agreement", and anybody invoking error in persona must be able to show "that he would have been unwilling to enter into a contract in the same terms with anybody else". The two quotations are taken from a judgment by Carlisle AJ in Gounder v. Saunders, the first South African decision dealing with error in persona.157 Pothier had been the great popularizer of this idea.158 As so often, however, his views came to South Africa via a characteristic detour,159 for the relevant passage in his Traite des obligations appears to have been cited with approval in every English case on error in persona since the latter half of the 19th century;160 and for quite some time South African judges (those from Natal in particular!) liked to take their law from English sources, rather than to puzzle their heads over Dutch

lT>~ Cf. Bartolus, Cuiadus. Donellus, as quoted by Haupt. op. cit., note 120, pp. 22 sq. 1эЭ Cf. Haupt, op. cit., note 120, pp. 20 sq. (referring to Struve and Richelmann). '=* Mod. D. 1, 3, 25.

Ьз Haupt, op. cit., note 120, pp. 23 sqq.

1эЬ Cf, for instance, Treite!, Contract, p. 226, discussing the policy reasons why English courts have tried to restrict, as far as possible, the range of operative mistakes as to the identity of the other party.

'" 1935 NPD 219 at 226.

1эН Traite des obligations, § 19; but cf. e.g. Barbeyrac in his annotations to Pufendorf, Of the Law of Nature and Nations (tr. B. Kennett, 4th ed., London 1729), Book III, Chap. VI, 7. n. 2.

1э9 For details on the reception of this Pothier rule in South Africa, cf. Reinhard Zimmcrmann, "Dor Einfluss Pothiers auf das romisch-hollandische Recht in Siidafrika", (1985) 102 ZSS (GA) 172 sqq.

160 Cf. e.g. J.C. Smith, J. A.C. Thomas, "Pothier and the Three Dots", (1957) 20 Modem Li? 38 sqq.; J.A.C. Thomas, "Error in persona and error in substantia", in: La formazione storica, vol. Ill, pp. 1203 sqq.

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and Latin texts from old civilian writers.161 The principle enunciated by Pothier (for which there is no authority in Roman law) has been repeatedly criticized; to Thibaut162 and Savigny161 (the great antagonists side by side!) it was irreconcilable with the will theory of contractual obligations, and so it still is for Professor De Wet of Stellenbosch.164 English judges and writers, too, have occasionally expressed the wish to bury "this chief source of confusion" "once and for all".165 Predominantly, however, the restriction of error in persona has been regarded as wholesome and practical, and thus it has prevailed not only in South Africa166 and England,167 but also on the European continent.'68

(c) The contribution of the natural lawyers

The natural lawyers, of course, tried to put the whole doctrine of error on a new, more rational basis.169 Thus, they rejected the Roman distinction between the various kinds of operative errors and quite a few of them not only redefined but also shifted the line dividing operative and inoperative errors not inconsiderably. Grotius, for instance, argued that every promise hinges on certain factual presumptions. If these turn out to be mistaken, the promise has lost its foundation and can no longer be enforced.

". . . si promissio fundata sit in pracsumtione quadam facti quod non ita se habeat, naturaliter nullam cjus esse vim: quia omnino promissor non consensit in promissum, nisi sub quadam conditione, quac reipsa non exstitit":17"

by way of a tacit condition, every motive that has induced a person to make a promise can therefore be read into his declaration. The whole

161 For Natal cf. Hahlo/Kahn. The Union of South Africa (I960), pp. 64 sqq. and Peter Spiller, A History of the District and Supreme Courts of Natal 1846-1910 (1986). On the process of reception of English law in South Africa generally, cf. Zimmermann, RHR, pp. 13 sqq.

162 System des Pandekten-Rechts (6th ed.), vol. I 1823, § 146.

1И System, vol. HI, § 136.

164Dwaling en Bedrog by die Kontraksluiting (1943), pp. 11 sqq.; De Wet en Yeats, p. 22. Cf. also |oubert, Contract, pp. 77.

165A.L. Goodhart, "Mistake as to Identity in Contract", (1941) 57 LQR 235; cf. also Lewis

v.Averay [1972] 1 QB 198 (CA) at 206F.

"*"' Cf. e.g. Bird v. Sumeri'ille 1961 (3) SA 194 (A) at 204G-H; Landsbergen v. Van der Walt

1972 (2) SA 667 (R) at 669C-G; Kerr, Contract, pp. 26 sqq.

167 For details, see Trcitcl, Contract, pp. 224 sqq.; Thomas, in: La formazione storica, vol. Ill, pp. 1203 sqq.

1(* Cf. e.g. § 76 I 4 PrALR; art. 1110 code civil; art. 24, n. 2 OR; art. 1429, n. 3 codicc civile; Gluck, vol. 4, pp. 158 sq.; Wachter, Pandekten, vol. II, p. 371.

169For details, see Haupt, op. cit., note 120, pp. 25 sqq.; Klaus Luig, "Der Einfluss des Naturrechts auf das positive Privatrccht im 18. Jahrhundert", (1979) 96 ZSS (GA) 50 sqq.; idem, Forschungsband von Zeiller (cf. infra, note 174), pp. 157 sqq.; cf. also Coing, pp. 418 sq.

170De jure belli ac pads. Lib. II, Cap. XI, VI. On Grotius' views on error cf. further Diessclhorst, Hugo Grotius, pp. 91 sqq.; cf. also Robert Feenstra, "L'influcnce de la scolastique espagnole sur Grotius en droit prive: quelques experiences dans les questions de fond ct de forme, conccrnant notamment les doctrines de l'erreur et dc 1'enrichisscmcnt sans cause", in: Fata Iuris Romani (1974), pp. 338 sqq.

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construction is obviously based on a fiction,'71 and it remained but an ephemeral episode.

The most important and lasting contribution of the natural lawyers in this area of the law, however, resulted from their analysis of contract as being based on two (coinciding) declarationes voluntatis, each of which, in turn, consists of two components: signum volendi and volitio, or declaration and intention.172 Thus, it became possible to distinguish dissensus and (unilateral) error and to interpret error as a discrepancy or conflict between the two constituent elements of a declaratio voluntatis. Natural-law-inspired writers and legislators themselves, however, were not ad idem as to which of these two elements to emphasize. Some of them, placing the stress on commercial convenience and certainty, gave preference to the external manifestation of the will. Both the Bavarian Codex Maximilianeus173 and the Austrian ABGB174 were guided by the (supposedly old German) principle of "error noceat erranti"175 and took account of any form of mistake by a party to a contract only under exceptional circumstances.176 Grotius and his followers, as we have seen, were much less strict in their approach; in fact, they even extended the scope of operative mistakes beyond what had traditionally been recognized by the authorities of the ius commune. Significantly, however, they devised another way of protecting the interests of the recipient of the declaration: for, while recognizing that even fault on the part of the person in error did not alter the fact that the contract lacked consensus and could therefore not have come into existence, they provided the party to whom the declaration had been made with a claim to recover his damages.177 This turned out to be a bold but, in the long run, influential innovation. Dogmatically, of course, it was difficult to see how it could be reconciled with established thinking patterns: a declaration made without intention is ineffective, and something that has no effect can hardly be the basis for a claim for damages. Culpa on its own, on the other hand, is not a suitable causa obligandi either.178 Rudolf von Jhering's doctrine of culpa in contrahendo attempted to deal

171Cf. e.g. Diesselhorst, Hugo Grotius, pp. 97 sqq.

172Cf. supra, pp. 567 sqq.

173IV, 1, §25.

174§ 876. On the background and history of this section of the ABGB cf. Klaus Luig,

"Franz von Zeiller und die Irrtumsrcgelung des ABGB", in: Sclb/Hofmcisrer (eds.),

Forschunysband Franz von Zeiller (1980), pp. 157 sqq.

175Cf. Haupt, op. cit., note 120, p. 36.

According to the ABGB, if the mistake was induced by a misrepresentation by the

other party or if the other party ought to have noticed the mistake.

177 Grotius, De jure belli ac pads. Lib. II, Cap. XI, VI; Pufendorf, De jure naturae et gentium.

Lib. Ill, Cap. VI, § 6.

I7S In French law, the problem is obviated by the general clause of delictual liability (art. 1382), which, in turn, derives from the theories of natural law; cf. infra, pp. 906, 1036; also supra, note 88.

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with these kinds of objections.179 In the end, however, the fathers of the BGB went even further and resolved to grant a claim for the reliance

interest, irrespective of whether the party in error had been at fault or not.180

(d) Error in Savigny's System and under the BGB

The most prominent voice against this new idea had, incidentally, been that of Savigny.181 His exposition of the doctrine of error, as contained in volume three of the System, is usually regarded as a landmark par excellence for the interpretatio moderna of this topic;182 Windscheid, for instance, did not hesitate to hail it as an "epoch-making" piece of legal writing.183

Savigny's importance in this area (as in many others) was not that of a great innovator. It lay in the manner in which he brought out and conceptualized the fundamental tenets underlying the sources of Roman law fas he understood them) and in which he tried to build up a coherent and logical doctrine on that basis. Thus, in this instance, his treatment provides the classic exposition of what has since become known as the "will theory".184 Particularly important was the clear distinction that he drew between a mere error in motive (which does not affect the will of the contracting party but relates to the preliminary process of the formation of such a will) and an error in respect of the contents of the agreement. In the latter case there is no correspondence between will and declaration, and a declaration unsupported by a corresponding intention must be ineffective. More clearly than anybody else, Savigny spelt out the consequences of his basic premises: there can be no claim for damages, even if the party in error was at fault;185 every error in persona relates to the content of the declaration and must therefore be taken into account;18is and every transaction affected by an operative error must be regarded as null and void, irrespective of whether the party who had been labouring under the

179 (1861) 4JhJb 1 sqq. On Jhermg's views, as expressed in this famous article, cf. recently Erich Schanze, "Culpa in Contrahendo bei Jhcring", (1978) 7 lus Commune 326 sqq.; Dieter Medicus, "Zur Entdeckungsgcschichtc der culpa in contrahendo", in: Iuris Projcssio, Festgabe fur Max Kaser (1986), pp. 169 sqq.

18(1 § 122 BGB. Along different lines still, § 99 II E I. For a comparative analysis cf. Friedrich Kessler, Edith Fine, "Culpa in contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study", (1964) 77 Harvard LR 429 sqq. They note a trend in French law, too, to compensate the innocent party by awarding him reliance damages, and even a tendency in the common law to employ the idea of culpa in contrahendo as a weapon to soften the rigours of the "objective theory" of contracts.

181System, vol. Ill, § 138, n. (d).

182Cf. e.g. Wieacker, Melanges Meylan, p. 385; Flume, AT, p. 445.

183Windscheid/Kipp, § 76, n>

184System, vol. Ill, §§ 135 sqq. and Beylage VIII (pp. 326 sqq.). On Savigny's error doctrine cf. Haupt, op. cit., note 120, pp. 40 sqq.; Flume, AT, § 22, 2; Klaus Luig,

"Savignys Irrtumslehre" (1979) 8 lus Commune 36 sqq.; Hammen, Savigny, pp. I l l sqq.

185Cf. supra, note 88.

186Cf. supra, pp. 592, 612.

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mistake wished this to be the case or not.187 On all these points, Savigny took a stand against prevailing practice.

Ultimately, however, it was not doctrinal accuracy that won the day. For even though the "will theory" gained broad acceptance,188 pragmatic modifications thereto continued to be made, particularly in the three areas mentioned above. The BGB does grant a claim for damages,189 takes into consideration whether the mistake induced the declaration190 and leaves any decision about the validity of the contract to the discretion of the party in error.191 Thus, the transaction is not invalid ipso iure, but may be rescinded by way of an informal declaration to the other party.192 Apart from that, the BGB no longer refers to the old categories of error in negotio, corpore, persona or pretio; they had become obsolete in the course of the later 19th century.193 Ironically, only the error in substantia, that chief source of

ш System, vol. III. § 138 (p. 294).

1SH Cf. e.g. Windscheid/Kipp, § 75; Ernst Zitelmann, Irrtum und Rechtsgeschafi (1879), passim; "Motive", in: Mugdan, vol. I, p. 457; De Wet en Yeats, pp. 7 sqq. A different view was taken by the adherents of the so-called "declaration theory", as developed since the 1870s: cf. e.g. Otto Bahr, "Ueber Irrungen im Contrahiren", (1875) HJhJb 393 sqq.; Rudolf

Leonhard, Der irrtum ah Ursache nichtiger Vertrage (2nd ed., 1907), pp. 14 sqq.

§ 122 BGB. The majority of pandectist writers had continued to protect the interests of the recipient of the declaration in a different manner: like the authors of the older ius commune, they regarded as operative only those mistakes for which the parly labouring under them could not be blamed (error invincibilis). It was disputed whether every type of fault or only gross negligence was to be taken into account in this regard. Cf., for example, the discussion by Dernburg, Pandekten, vol. I, § 101, who refers to Savigny's solution as "mathematically" and abstractly correct, but as practically unsuitable (and as not being in accordance with the sources of Roman law); cf. further e.g. Windscheid/Kipp, § 76 in fine and, for modern South African law, Joubert, Contract, p. 83.

1 Cf. § 119 I BGB (". . . 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"); Ernst Kramer, in: Miinchener Kommentar, vol. I (2nd ed., 1984), § 119, n. 129. On the earlier discussion about error in persona in this context, cf. supra, pp. 611 sq.

191 This is in line with the principle of private autonomy: cf. Harder, (1973) 173 Archiv fur die civiiistische Praxis 225.

192 §§ 119, 142 sqq. BGB. § 142 I BGB attributes ex-tunc effect to the declaration of rescission. Only a few of the pandectists had been prepared to follow Savigny and to regard the contract as null and void (cf. e.g. Wachter, Pandekten. vol. II, § 186, Beil. B). According to the majority view, only the party in error was allowed to invoke the invalidity of the transaction ("relative invalidity"); cf. e.g. Regelsberger, Pandekten, § 142, IV; Brinz, Pandekten, § 317, in fine. Towards the end of the century the term "Anfechtbarkeit"

(rescindability) came into use and one started to require a declaration of rescission. It is interesting to note that this concept of "Anfechtbarkeit" can be traced back to Savigny too (who had, however, not applied it to error): System, vol. IV, pp. 536 sqq. For details, see Manfred Harder, "Die historische Entwicklung dcr Anfechtbarkeit von Willenscrklarungen", (1973) 173 Archiv fiir die civiiistische Praxis 209 sqq.; cf. also Hammen, Savigny, pp. 123 sqq. For modern South African law ("The way in which error is raised is . . . by the party who relies on it pleading it") cf. Joubert, Contract, pp. 83 sqq. According to Hoff, (1978-79) 53 Tulane LR 337, there has been a general tendency in both civil-law and common-law systems to expand the idea of voidability or relative nullity and to contract the scope of the notion of absolute nullity correspondingly.

193 What mattered for adherents of the will theory was whether will and declaration coincided: without a corresponding will no (valid) declaration. Whether the deviation between will and declaration could be labelled error in persona, in objecto, etc. became more

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doctrinal embarrassment, still shimmers through, albeit faintly. According to § 119 II BGB, a contract may be rescinded on the basis of an error as to those characteristics of a person or thing which are regarded in business as essential. It will be recognized immediately that this provision is much wider than the Roman notion of an error in substantia, particularly if the very liberal interpretation of the term "characteristics" by the German courts is kept in mind: it covers all legal or factual features of a thing that make up, contribute to or influence in the eyes of the general public its usefulness and value.194 This includes, for instance, the age of a second-hand car and the existence of an expert opinion attesting to the genuineness of a work of art or the permissibility of building projects on a piece of property.195

Rescission would also have been possible, according to German law, in that famous Dutch case19ft where some old metal cup, dug up in the

course of dredging works, had been sold without knowledge of the fact that it was actually a hcllenistic Kantharos of the 2nd century в.с. with Greek and Latin inscriptions (one of which concerned its owner, who may have been a Roman officer mentioned by Diodorus Siculus).

(e) Error in substantia

To most authors of the ius commune, such a wide-ranging recognition of a mistake, that related not really to the content of the contract, but rather to a quality of its object, would have been unthinkable. The somewhat exceptional category of error in substantia was usually taken to refer to cases where the material, in the sense of chemical substance, of the object of the contract had turned out to be different from the one contemplated by one or both of the contracting parties. Again, it was Savigny who pioneered a much more satisfactory approach. How odd that it should matter whether a sculpture by Benvenuto Cellini was plated with rather than made out of silver and not whether it was really attributable to that artist!197 Savigny therefore broadened the scope of error in substantia (a move for which, incidentally, he derived support

and more irrelevant. The fathers ot the BGB did not want to put judiciary and legal science into the strait-jacket of these categories of the ius commune. A similar attitude was adopted when it came to the codification of the law of unjustified enrichment: cf. infra, pp. 887 sq. Other civilian codifications (as. for instance, the Swiss, Austrian and Italian ones) still use the categories of error in objecto, ncgotio and persona; for an overview cf. Diesselhorst, Sympotica Wieacker, pp. 181 sqq. The system ot operative errors as recognized by the BGB (§ 119, cf. supra, note 81) is based on the analysis by Ernst Zitelmann as presented in his work on Irrtum und Rechtsgeschaft (1897). On the origin of § 119 BGB and on the theories of Zitelmann, cf., in particular, Rothoeft, op. cit., note 25, pp. 64 sqq., 92 sqq.; Werner Schubert, "Zu cincr Edition unveroffentlichter Materialicn zum BGB", (1975) 175 Archiv fur

die civilistische Praxis 430 sqq.; cf. also Hammen, Savigny, pp. 128 sqq. 194 Cf. already RGZ 64, 266 (269); further e.g. BGHZ 34, 32 (41).

1Чэ For the (abundant) casuistry cf. e.g. Kramer, op. cit., note 190, § 119, nn. 108 sqej. ''"' Discussed by Feenstra, (1974) 48 Tulane LR 846 sqq. The Supreme Court of the

Netherlands did not regard the contract as void or voidable. 147 Savigny, System, vol. Ill, § 137, p. 280.

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from the error in sexu discussed in D. 18, 1, 11, I);198 for he recognized that a contract may be void, if the mistake relates to a substantial quality of the object. Substantial qualities, however, are only those which,

according to notions prevailing in everyday life, cause a thing to belong to a specific class of objects.iyy Thus, on the one hand, he did not stick

to the rigid, outdated and unsatisfactory criterion of "materia", but was (in this instance) prepared to accommodate a more pragmatic approach.200 Yet, on the other hand, he was keenly aware of the fact that recognition of every kind of mistake about (even essential) qualities was likely to undermine commercial certainty and be incompatible with the demands of business.201 Hence the requirement that the thing must have turned out to be an aliud, must have belonged to a different commercial category of objects.

Savigny himself, incidentally, clearly recognized that error in substantia (however defined) was something of an anomaly in his doctrinal edifice; but respect for the sources of Roman law demanded not only its retention but also its rationalization as far as that was possible.202 Even though Savigny's construction of error in substantia remained somewhat artificial,203 it constituted an acceptable compromise solution and found its way into nearly all pandectist textbooks.204 Only towards the end of the century was some opposition voiced. Ernst Zitelmann declared that every error relating to a quality of the object constituted an error in motive and as such was irrelevant.205 The authors of the first draft of the BGB adopted this radical and rigidly dogmatic view.206 But, as is so often the case, extreme views produce extreme reactions. The second commission wanted to be pragmatic, equitable and modern. Without much reflection,207 it took a plunge into the dark and ventured to set out on what Leo Raape called a "mystery tour".208 It is widely recognized today that in this instance the legislator has failed in his task to find plausible and determinable criteria by which to separate relevant from irrelevant forms of error.204

198Savigny, System, vol. Ill, § 137, p. 282. Zitelmann, Irrtum und Rechtsgeschaft, p. 574, on the other hand, criticized Savigny for distorting the sources.

199Savigny. System, vol. Ill, § 137, p. 283.

200Savigny, System, vol. III. § 137, p. 277.

201Savigny, loc. cit.

202Cf. also Haupt, op. cit., note 120, pp. 44 sqq.; Flume. AT, § 22, 2; Luig, (1979) 8 lus

Commune 54 sqq.; Hammen, Savigny, pp. 114 sqq.

2113 So Savigny himself {System", vol. Ill, § 138, p. 293). 204 Cf. e.g. Windscheid/Kipp, § 76 a, e).

190, § 119, nn. 10, 89 sqq.; cf. also Diesselhorst, Sympotica Wieacker, pp. 194 sqq.

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(f) Developments in French and English law

In other European countries there have been similar tendencies to extend the scope of operative error beyond the mere terms of an agreement to parts of what one could call the contractual environment.210 We have seen how far Grotius was prepared to go—his doctrine of implied supposition opened the door for mere motives to be taken into account.211 Pufendorf modified and somewhat restricted this idea. He went back to the old distinction between essentialia and accidentalia negotii, but emphasized that the former also include "illae qualitates rei quas paciscens praecipue ob oculos habuit".212 Via Jean Barbeyrac (who translated and annotated Pufendorf 's main work), this formula gained entry into Pothier's influential Traite des obligations.213 Pothier, of course, was not only the elegant stylist and a matchless popularizer; he was also a great amalgamator of legal ideas and various strands of tradition. Here we have an example, for it was Pothier who linked the view expressed by Pufendorf to the Roman error in substantia. "L'erreur annule la convention", he wrote,214 "поп seulement lorsqu'elle tombe sur la chose тёте, mais lorsqu 'elle tombe SHY la qualite de la chose que les contractans ont eu principalement en vue, et quifait la substance de cette chose." And even though the French code civil refers only to the substance of the thing,215 this clause is usually interpreted in the light of Pothier's statement on the matter.216 Error in substantia has become a category subjectively determined, for it is taken to refer to the

210 Cf. the analysis by F.H. Lawson, "Error in substantia", (1936) 52 LQR 79 sqq. 11 Cf. supra, pp. 612 sq.

1 This distinction was, however, not employed in the context of error by Pufendorf: cf. the analysis by G.E. Mulder, "De dwalingslecr van Samuel Pufendorf en zijn commentatoren", (1962) Rechtsgeleerd Magazijn Themis 111 sqq.; Feenstra, (1974) 48 Tulane LR 856 sq. 213 Cf. Mulder and Feenstra, loc. cit. 2X4 Traite des obligations, n. 18.

215Art. 1110 I code civil; cf. also art. 1358 I of the Civil Code of the Netherlands. But see artt. 1842 sqq. of the Louisiana Civil Code (1870) providing the following detailed regulation: "Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or (!) some substantial quality of the thing" (art. 1842). "There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both of the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object" (art. 1843). "The error bears on the substantial quality of the object, when such quality is that which gives it its greatest value. A contract relative to a vase, supposed to be gold, is void, if it be only plated with that metal" (art. 1844). "Error as to the other qualities of the object of the contract, only invalidates it, when those qualities are such as were the principal cause of making the contract" (art. 1845). It is quite extraordinary to see how the code itself used to assume what would (for instance) in Germany be regarded as the role of a commentary. In 1984, these rules were replaced by the new art. 1950.

216For details, see Lawson, (1936) 52 LQR 81 sqq.; Rene David, "La doctrine de l'erreur dans Pothier et son interpretation dans la Common Law d'Angleterre", in: Etudes de droit civil a la memoire de Henri Capitant (1939), pp. 145 sqq.; cf. also Watson, Failures, pp. 24 sq.

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qualities which the parties had principally had in mind. Again, the dangers of this approach for commercial certainty are obvious.217

Even English judges have occasionally succumbed to the strange and luring spell of error in substantia. The English law relating to error is particularly complex and confusing,218 and if Continental doctrine has been referred to as perplexa satis,219 the English one is certainly perplexissima.220 It has grown together from separate roots (common law and equity) and is based on certain characteristic premises that make any comparison with continental systems difficult.221 The very fact, as Professor Lawson says very pointedly, that systems derived from Roman law accept a certain solution "is a reason why English law should not".222 And yet, one comes across a statement such as the following:

"And, as we apprehend, the principle of our law is the same as that of the civil law; and the difficulty in every case is to determine whether the mistake or misapprehension is as to the substance of the whole consideration, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration."223

217Emphasized particularly by Lawson, loc. dt. Cf. also Hoff, (1978-79) 53 Tuiane LR 353 ("very imprecise and uncontrollable device").

218For a brief overview from a comparative perspective cf. Zweigert/Kotz, pp. 108 sqq., 116sqq.;T.B. Smith, "Error in the Scottish Law of Contract", (1955)71 LQR 507 sqq.; Saul Litvinoff, "'Error' in the Civil Law", in: Joseph Dainow (ed.), Essays on the Civil Law of Obligations (1969), pp. 222 sqq., 253 sqq.

219Grotius, Dejure belli ac pacts, Lib. II, Cap. XI, VI.

220"fhe treatment of mistake is certainly one of the weakest aspects of (Anglo-American) contract law. The cases and 'rules' are contradictory and impossible to reconcile": Arthur I. Rosett, "Contract Performance: Promises, Conditions and the Obligation to Communi cate", (1975) 22 University of California at Los Angeles LR 1095.

221Cf. e.g. Lawson, (1936) 52 LQR 105: "In fact, the instinct of English law is to isolate a contract as far as possible from its environment. This, though operating inequitably on occasion, gives greater certainty and makes parties more careful in settling the terms of their contract. Perhaps therefore the ultimate distinction is between a paternally minded equity and strict law." Any evaluation of the comparatively narrow ambit of the doctrine of error in English law must also (for instance) take account of the fact that it is interrelated with and supplementary to the doctrine of misrepresentation (which civilian legal systems do not know) and that Continental safeguards such as (for instance) culpa in contrahendo are not available in English law.

222(1936) 52 LQR 98. For a very thorough comparative analysis of German law and

English law on the topic of mistake in general, see, however, Rothoeft, System der Irrtumslehre (1968), who demonstrates the functional equivalence of the solutions found in both legal systems. Cf. also Buckland/McNair, pp. 205 sqq.; Thomas, in: La formazione storica, vol. Ill, pp. 1203 sqq., 1208 sqq. and Timothy Hoff, "Error in the Formation of Contracts in Louisiana: A Comparative Analysis", (1978-79) 53 Tuiane LR 329 sqq., who concludes that the doctrine of error in a modern civil code has a coherence within the legal system and a measure of predictability that the common law has yet to achieve (p. 379). Hoff refers in this context to Louisiana's paucity of case law. The Louisiana Civil Code enunciates a particularly thorough and detailed theory of contractual error (contained in 30 articles), which is largely based on Pothier and the French Code Civil.

223 Kennedy v. Panama, New Zealand and Australian Royal Mail Co. Ltd- (1867) LR 2 QB

580 at 588 (per Blackburn J). For examples of the application of error in substantia in other common-law jurisdictions, cf. Hoff, (1978-79) 53 Tuiane LR 355 sqq.

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Blackburn J arrived at this conclusion after a lengthy review of Roman texts on error in substantia, and the whole passage has given rise to the inference that {common) mistake as to quality may under certain circumstances invalidate a contract in English law.224 On the other

hand, however, it is clear that a unilateral error in substantia does not in any way affect the contract.225

It need hardly be emphasized that the continental classification of error has in other respects, too, been regarded as useful at common law.226 But, above all, the very idea that mistake can, under certain (albeit relatively narrow) circumstances, negative consensus,227 has been received, via Domat, Pothier, Chitty, Colebrooke and the other treatise-writers from the civil law.228 It has never fitted in very happily and has, in actual practice, been overlaid by estoppel ideas and the "objective test" approach.229 But the fact remains that the English doctrine of mistake cannot be properly understood if one fails to realize that, essentially, it constituted a late importation into the common law, and one that was very closely related to the consensus doctrine of contract.230

Trcitel, Contract, pp. 215 sqq. (also discussing Bell v. Lever Brothers, Ltd. [1932] AC 161 >). 22" The leading case is Smith v. Hughes (1871) LR 6 QB 597.

226For America, c(. e.g. Roscoc Pound, Jurisprudence, vol. IV (1959), pp. 453 sqq. and, more recently, Timothy Hoff, (1978-79) 53 Tulane LR 34b sqq. For England, see e.g. Pollock, Principles of Contract (7th cd., 1902). pp. 461 sqq., referring to error in negotio, in persona, in substantia, in corporc and in pretio.

227Cf. Lord Atkin in Bell v. Lever Brothers Ltd. [1932] AC 161 (HL) at 217.

22M A.W.B. Simpson, "Innovation in Nineteenth Century Contract Law", (1975) 91 LQR 265 sqq.; cf. also Feter Stein, "Continental Influences on English Legal Thought", in: La

/ormazione storica, vol. Ill, pp. 1124 sq.

229 Cf. supra, notes 14, 15.

2i " Simpson, (1975) 91 LQR 268 sq. According to Simpson, the common law had traditionally dealt with mistake by way of an implied condition: the agreement was taken to have included a condition to the effect that a certain state of affairs existed; if that proved to be a mistaken assumption "the contract was off not because the parties had failed to reach consensus, but because that was what they had in fact (tacitly) agreed upon." This is vaguely reminiscent of Grotius' construction of error (supra, pp. 612 sq.).

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