Theoretical and practical aspects regarding consent, as validity condition of the civil act

• Author: Camelia Stanciulescu Faculty of Business and Administration University of Bucharest
• Pages: 37-43

Besides the defects of consent mentioned by the legal provisions, we must point out, in certain conditions, injury, which represents a material prejudice that one of the contracting parties suffers, because of the obvious disproportion in value, emerging right at the moment of concluding the contract, between the performance that it undertook to provide and the performance that it was entitled to receive in exchange¹.An error consists in a situation when a person has an erroneous image of reality, considering that what is false is true, or that what is true is false²

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According to article 953 of the Civil Code, "consent is invalid when it is granted by mistake, obtained through violence and fraud". Besides the defects of consent mentioned by the legal provisions, we must point out, in certain conditions, injury, which represents a material prejudice that one of the contracting parties suffers, because of the obvious disproportion in value, emerging right at the moment of concluding the contract, between the performance that it undertook to provide and the performance that it was entitled to receive in exchange³. An error consists in a situation when a person has an erroneous image of reality, considering that what is false is true, or that what is true is false⁴.

Consent must represent the perfect agreement between the wills of the persons that are bound by the legal relationship. Therefore, when the wills do not converge in an adequate and indissoluble way upon those elements that each party deemed to be constitutive of the legal act, the contract cannot be validly formed, irrespective of the type of deceitful appearances that the parties, or only

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one of them, might have been misled by. The lack of conformity with reality of the contracting party's belief is what justifies, in certain cases, the invalidation of the legal act⁵.

The error may also arise out of the interpretation that the receiver of the offer gives to the contractual clauses. When the clause is clear, the receiver of the offer may not invoke the error caused by its own fault, and in case of ambiguity it must make recourse to the author for explanations or to the trial court⁶. In function of its gravity, of the nature and scope of the consequences it has on the consent validity, the error may be⁷:

- A fundamental error or an error that annuls the will;

- A defect of consent error and,

- A harmless error (with no effect on the contract validity). The defect of consent error, also called serious error, implies that the false representation applies to either the substantial qualities of the legal act object (error in substantiam), or to the other contracting party or the beneficiary of the legal act (error in personam). This form of error is not as serious as the fundamental error⁸, because it only alters consent; the vitiation is only partial, while the fundamental error, which equates with the inexistence of consent, is total and permanent. In case of the defect of consent error, the wills of the contracting parties are convergent upon the essential elements of the contract: they agree to sell a property, in exchange of a certain price. So, the parties have consented, but the consent was granted on the basis of an error.

The Romanian legislator of 1864 takes corrective measures against the defect of consent error only in two cases: when it affects the substance of the object envisaged by the services provided by the parties, and when it applies to the party with which the contract is concluded, in which case the consideration of the person is the main reason why the legal act was concluded.

According to the provisions of art.954 (1) of the Civil Code, "the error does not cause nullity, except for cases in which it applies to the substance of the contractual object"⁹. This provision also engendered fierce controversies in the specialty literature, as the interpretation is rendered difficult by the ambiguity of the legal text. Thus, the legal doctrine emphasized that, although the law refers to the "object of the convention", or, generally speaking, to the object of the legal act, "it actually refers to the essential qualities of the object of the performances incumbent on the parties." In other words, "the substance of the contractual object is what the parties agreed it was essential for each of them in a certain

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contract, and, therefore, what they expected from the other contracting party pursuant to the fulfilment of the assumed obligations"¹⁰.

If we analyze diachronically the phrase "error on the substance of the convention object", we notice that, in the classical conception, belonging to the Roman law, error in substantiam¹¹ consisted exclusively in a false representation concerning the matter that the property was made of. The error is limited, in Roman law, to the matter that the property is made of, in case of legal acts in general, and with respect to the sale-purchase act, it relates to the flaws of the object, and the appreciation criterion is objective in both cases. For the Romans, it sufficed that the property should have been made of a different substance or that it should have presented one of the flaws accepted by the Roman legal experts, the determining character of the error on the party's consent being irrelevant.

According to the objective conception, we define the substance of the object as its main quality, which is specific to its nature, and without which it wouldn't be what it is. Delightful as it might be through the logical sequencing of arguments, the objective conception presents real difficulties when we have to outline what is essential in qualifying a property¹². The shortcomings of the objective criterion are revealed in practical cases: buying a string of pearls, that the purchaser mistakenly considers to be natural, is deemed to be valid, as the matter that the string is made of, namely mother-of-pearl, is adequate; although it was a false belief that the pearls were natural that determined the purchaser to buy the necklace, this has no relevance.

To this rigid and insufficient conception, the modern law opposed the subjective conception, relying on the subjective conception, according to which "the word substance must not be understood in the metaphysical sense - that is by placing it beyond the subjective interest-, which is, in fact, the content of every private law. On the other hand, the substance of the convention object is not the substance of a material object; it is the substance of the services that the parties have bound each other to provide, because these services form the...