The Defects of Consent
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
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