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Lubbe, Gerhard --- "Mistake" [2006] ELECD 193; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 42

Section Title: Mistake

Author(s): Lubbe, Gerhard

Number of pages: 12

Extract:

42 Mistake*
Gerhard Lubbe



1 Introduction
A mistake is `a belief that is not in accord with the facts' (Restatement,
Contracts 2d, s.151; Kramer and Probst, 2000, p. 6). In a contractual setting
the question is whether a party whose expectations of a contract have been
frustrated by a mistake should be permitted to disappoint the expectation
of the other party that a contract has come about. In respect of a given
transaction, there is a myriad of circumstances about which mistakes might
be made. In addition, one or both of the parties might be mistaken about
the same or different aspects, and a party (or both of them) might at the
same time be labouring under a number of mistakes about different issues.
As a result of this complexity and the interplay of basic principles of con-
tract law (Kramer and Probst, 2000, p. 1), national legal systems offer a
`perplexing abundance of different viewpoints' on when a mistake is oper-
ative (Zweigert and Kötz, 1998, p. 423).
The treatment of mistake in the civilian tradition reflects the development
of the casuistic notions of Roman law by the authors of the jus commune
(Kötz and Flessner, 1997, pp. 172­3, 179; Kramer and Probst, 2000,
pp. 8­9). This influence is not absent from English law. Decisions of the 19th
century, which under the sway of Pothier inclined towards a subjective view
of contract, sit uneasily with an objective theory of contract espoused in
more recent ...


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