The Defects of Consent

Only available on StudyMode
  • Download(s) : 245
  • Published : May 16, 2013
Open Document
Text Preview
Defects of Consent

A defect of consent is a situation where a party’s declaration does not reflect his actual intent. This difference between declaration and intent may be caused by other parties,in order to make someone to form a contract with themselves. Fraud and Duress are this kind of defects. Roughly,fraud is deceiving someone by hiding certain facts or giving them a wrong impression/information in order to make them form a contract and duress is scaring or threatening someone to make them form a contract. If there is a difference between declaration and intent,which unintentionally resulted from the declarant,we can say there is an error. In some cases,both parties are mistaken about contract. Such defects are called “Collective Error”. In these situations,contract is formed by parties’ true intent,not according to their false statements. Error

In the TCO article 30,the law states that “A party acting under an essential error when entering into a contract is not bound by it.” Interpreting this article,we can deduce that essentiality is a key concept,since unessential errors will not affect validity of the contract.Some aspects of essential error are specified in TCO,but law does not limit cases of essential error with those articles. Unwritten states of essential error are determined by the rules of good faith. Error may occur in several ways:

Error in declaration
In the TCO article 31 the law sets forth:
An error is deemed particularly essential in the following cases 1-Where a party intended to conclude a contract different from that to which he consented.

A wants to sell 100 kilos of olive oil to B,but during the formation of the contract, A inadvertently states that he wants to buy 100 kilos of olive oil and B agrees the offer.

2-Where a party has concluded a contract relating to a subject matter other than the subject matter he intended.

A wants to buy E branded good,but during the formation of the contract he states he wants to buy F branded good by mistake and is not aware of it.

3-Where a party declared his intent to conclude the contract other than the whom he intended to.

A wants to send an offer via mail to B,but he writes a different adress and mail goes to C. C accepts the offer.

4-Where a party took a specific person into consideration as the other party in entering a contract but declared his intent to another.

A is a nanny who wants to raise B’s child C,but during the formation of the contract she stated the name of B’s mentally deficient child D. A is mistaken about someone’s identity,not someone’s qualifications. Otherwise it would be error in motive,which shouldn’t be confused.

5- Where a party has promised to make a significantly greater performance or has accepted a promise of a significantly lesser consideration than he actually intended. Error in calculation of a simple nature do not affect the validity of the contract;but they should be corrected.

A good should have 10.000 dollars written on its label but accidently 1000 dollars is writtenon label. A buys the good for 1000 dollars. Error of Agents
The law states in TCO article 33 that “Where an offer to enter into a contract has been incorrectly communicated by a Messenger,translator or other agents or by any means,the provisions governing error are applicable”. Error of agents are counted as error in declaration. Mistranslation,misinforming,changes in the text during telegraphing… are examples of such errors. Error by Considering a Demeanour as Consent

When a party’s action is considered as an offer or acceptance by another party,and the other party is right to consider this as such and forms the contract,contract will be valid. However mistaken party can put forward that he is mistaken and benefit from the provision of error in declaration.

Texts signed without reading
If a party signs a text without reading ,and is right to think that the text suits his intent,outcome is determined by the other...
tracking img