“La Trahison des Images”: Intentional discrepancy between individual will and its declaration

Abstract

The paper is intended to pursue the old issue of the underlying basis of contracts as well as legal transactions on the whole. The main idea is, consequently, to explore, using example of vices of will caused by intentional discrepancy between the internal will and its declaration, which theoretical pattern should be applied to the legislative regulation, which is in force nowadays first of all within the civil law legal space. In particular, with the aim of answering, in a way, the question whether it is really obvious that the dogma of the autonomy of the will here is no longer the basis of the rules of contract. Brief comparative overview demonstrates that despite the significantly different viewpoints of the doctrines as to the basis of legal transaction, and above all, a contract, many legal systems of continental Europe do take a serious account of the subjective element and proceed openly or implicitly from the necessity that the internal will should correspond to its external expression. At the same time, within the contract law, in some cases it is being spoken of consensus and its vices. However, if consensus in such cases means nothing but agreement on the parties’ intentions, we are still dealing with the same subjective approach, based to a large extent upon the central idea of the old will theory and its modifications, attaching at least considerable degree of importance to the individual will. 

Keywords:

contracts, transactions, fictitious transactions, sham transactions, simulation, vices of will