Role Of Mistake In English Term Paper

Length: 17 pages Sources: 3 Subject: Business - Law Type: Term Paper Paper: #81767225 Related Topics: Tort Law, English, Adjudication, Business English
Excerpt from Term Paper :

In this particular instance, while under the impression that the expression 'Gros' denoted double packs, not as the objective term signified the amount o "12 x 12," a teacher reportedly ordered toilet paper on behalf of her school. "Her order of 'Gros' those objectively meant 3600 packs of toilet paper instead of 50. The action of a supplier for the prize of 3600 pacts of toilet paper failed because the teacher was allowed to declare her declaration of the will to be void for meaning mistake.... Whether the error was to be blamed on the teacher is entirely air of a love for the right to rescind the contact in German law...."

In an English case, an offer assessed the current market rental value of the premises as £65.000, however this later was claimed to have been included in error, with the intended figure to be and £126,000. According to Slade I.J. (obiter), "it is contrary to the well established principles of a contract law to suggest that the offeror under a bilateral contract can withdrawal an unambiguous offer, after the offer has been accepted in the manner of contemplated by the offer, simply because he made a mistake "which the offeree an and neither new nor could result only have known at the time when he accepted it. Rectification may be available in such circumstances, but only where it would give the document that meaning that both parties had originally understood are where the other party knew that the rectified meaningless for the first party had really meant...."

Recovery of Wasted Expenditure (# 284 BRG)

German contract law, # 284 BRG "provides an alternative basis of recovery to the pomisee. Instead of claiming damages as a substitute for performance, the pomisee covered in an expenses (mate in reliance on the obligation of performance) that are frustrated as a result of failure of performance. The conditions for recovery are identical to the right to claim damages instead of performance.... English law is open to the possibility that expenditures related to non-or bad performance "may form the loss to be compensated with the contract has been breached." English law, however, "extends its conception of wasted expenditure into a somewhat wider notion of the reliance interest."

Contract law, contrary to tort law which is "protective," is "productive." The trend currently exist to weaken (or perhaps destroy) the long-lived distinction between English law (noted as a system essentially judge-made) and continental European law, which includes German law, a system primarily found in statues, particularly the Civil Code. The following changes have reportedly brought English law closer to the German and contemporary European protectionists and interventionist model. German law more extensively recognizes mistake grounds for setting a contract aside, an than the implicit contract law does. In English law, dealings with third parties, rules' fine-tuning on mistake directly the extent commercials certainty is threatened. In German law, on the other hand, the abstract principle effectively shields the contract of transfer from such defects.

English law's approach to the restitution significantly differs from German law. To establish a positive ground of restitution or an "unjust actor," in German contact law, an individual only needs to prove transaction lacked a justifiable basis. In this scenario, both aw English and German contact law include mistake, necessity, failure of consideration, and illegality etc. Both countries' laws in instances of "Unjust Enrichment" are functionally equivalent.

In regard to the law of property, English and German contact law include formal requirements to effect the transfer of freehold land. Concerning protection provided to tenants, characteristics of English law resemble those found in German law, despite up and downs relating to political developments in Germany during the last quarter of the 20th century. Overall, the English system may provide a bit more of protection as under the Housing Act 1998, protection of tenure is provided to tenants by the imposition of a statutory periodic tendency when the time of tenancy expires."

The English approach to implied terms can provide more coverage and in the field of default-type rules than the German approach. In particular areas of German law, to a considerable extent, standard business terms have to be modified or replaced by the rules of the Code.

On particular facts, the German position regarding a declaration to and indeterminate persons may differ from the English law, as at times the German courts have been prepared to find the advertisement to equal an offer.

German positions and English positions in this particular area, nevertheless, are basically the same.

English law does not had to contend with...


"the binding update of the offer is a requirement of commerce. In some on receives an offer, he must be able to count on a contract arising when he or his side makes a timely acceptance of the offer.

As a result of an essential tenet of the German contact law, freedom of contacts purports that in the majority of cases, no obligation demands that an individual accept an offer. In regard to unsolicited goods, an individual is under no obligation whatsoever to do anything about the goods. In English law, the presumption exists that goods being sent to an individual that have not been requested in advance may amount to a gift instead of an offer that may or may not be accepted.

Only two instances in the Code have been noted where liability "is derived from the flawed conclusion of a contract leading to its invalidity."

Liability is imposed if a party in nullifies a contract because he made an agreement mistake, where the agent is held liable, if than when concluding a contract, he did not know of a lack of authority.

English and German contract law are basically the same since both legal families operate in what one often calls the free market system."

Nuances, albeit, exist regarding how far one mistake free market ideas, as well as, the extent courts can "intervene" and rectify the balance in the week are parties favour. German law does not permit parties to experience complete freedom to withdrawal with impunity from negotiations which have not yet matured into a contract.

German law frequently leans forward an artificially constructed equality between the parties, unlike the market's and nature's preference for in the quality, which results in an increased deterioration of the notion of contractual freedom. This proves true particularly instances of clauses seeking to two limits or exclude the one party's liability.

In Germany, it may be argued, the notion Sozialstaatsprinzim, a constitutional principle mentioned in article 20(1) contributed support to a pro-consumer/weak party position, creates a legal (limited) counterbalance to social and economic power positions.

Through a mixture of statutory intervention and judicial creativity, German contract law has begun to move away from what can be considered the nineteenth century" liberal contractual model." This also holds true for English law.


If the 'real task of contract law (is) to enforce the will of the parties', then mistake as a legal doctrine confronts this issue head-on since it addresses the question of the parties' consent."

The most significant effect of mistake is to render the contract, which pursues the task of enforcing the will of the parties, invalid. In regard to a contract's fundamental and basic element, when both parties are mistaken, if the mistake constitutes such significance that, according to stipulations of English case law, it presents a "false and fundamental assumption" of the contract; the contract is void from the start. Regarding the accepted German doctrine, according to Savigny "a mistake in subtantia must be treated precisely like a mistake in corpora whenever, according to the views, the present in daily intercourse, the object belongs to a different category from that to which it was erroneously supposed to belong." At the same time, however, another reportedly respectable body of opinion exists which contends "such a mistake is in reality in motive." The concept of mistake in German law depicts a divergence in theory and outlook. Following Savigny's theory, a mistake did not affect consent when a party actually consented to the contract, but an analysis had to be made at a prior stage in the proceedings.

The distinction between the will, according to Savigny, and what factors preceded the will's outward declaration.

In Savigny's perception, in the event the party's internal will does not correspond with the outward declaration of his/her will, giving relief for the subsequent mistake will consequently be justified.35 This paarticular analysis links to the declaration of will being considered as the legal foundation for contracts as juristic acts (Rechtsgeschaft). Along with emphasis being placed on the communication of intent (a shift from the intent per se), even more significantly, it is on the subsequent and objective reliance on the other party's declaration.

Within the category of mistakes which exclude correspondence between will and declaration, the…

Sources Used in Documents:

Works Cited

Beatson, J. & Friedmann, Daniel. (1995). Good Faith and Fault in Contract Law. Oxford University Press. 9 Jan. 2008.

The Columbia World of Quotations. (1996). New York: Columbia University Press, 1996. 9 January 2008

Duhaime, Lloyd. "Mistake, Rectification & Misrepresentation." (2007, May 7). 9 January 2008 Gordley, James, ed. The Enforceability of Promises in European Contract Law. Cambridge, England: Cambridge University Press, 2001. Questia. 9 Jan. 2008

Chen-Wishart, Mindy. "6In Defence of Unjust Factors: a Study of Rescission for Duress, Fraud and Exploitation." Unjustified Enrichment Key Issues in Comparative Perspective. Ed. David Johnston and Reinhard Zimmermann. Cambridge, England: Cambridge University Press, 2002. 159-193. Questia. 9 Jan. 2008

Cite this Document:

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