Some aspects of a comparative legal analysis of the doctrine of error at the conclusion of a contract

Abstract

The article presents the result of a comparative legal analysis of the aspects of the doctrine of error at the contract conclusion. The general origin of the concept of error roots in Roman law and was further developed along with the concept of contract and its validity. It is interesting how a variety of legal theories of error developed from one common Roman beginning, each of which is in constant search for difficult compromises. The author considers in a comparative legal context the issue of the admissibility of error in the circumstances of the future. Existing exceptions to the generally accepted refusal to recognize the significance of error about future facts are reviewed. The article also analyzes the nature of the problem of assessing the significance of error. Firstly, the nature of the problem of assessing error can be related to the fundamental contradictions of the principles of contract law, which must be taken into account when considering the significance of error. The doctrine of mistake is at the intersection of basic civil law principles, namely, binding of the contractual obligations (pacta sunt servanda), on the one hand, and the principles of freedom and autonomy of will, on the other. In this regard, the doctrine is one of the most controversial doctrines of contract law and seeks a balance between the interests of the stability of the turnover and the interests of each individual participant. Secondly, the nature of the problem of assessment of error is related to the issue of the correlation between contractual theory and defects of will. Depending on the prevailing contract theory, liberal or interventional, the key tasks of law are determined, respectively: either ensuring formal equality of opportunities between the parties and guaranteeing procedural contractual fairness, or ensuring substantive contractual fairness. Depending on this, a balance is determined in the search for the significance of error. The author of the article also proposes to get acquainted with the results of a comparative legal study of the criteria for the significance of an error used in some countries of the European civil tradition and common law countries. Subjective and objective concepts of significance are analyzed, as well as combinations of their elements, which are reflected in the regulation of the considered legal orders. The study is useful for developing and improving the domestic doctrine of error. 

Keywords:

contract, contractual obligations, error, mistake, significant error, essential error, fundamental error