Error. Brief remarks on the legal novelties on error
| Author | Gabriel Tita-Nicolescu |
| Position | Ph. D., Associate Professor, Transilvania University of Brazov |
| Pages | 42-53 |
42 GABRIEL TIŢA-NICOLESCU
ERROR. BRIEF REMARKS ON THE LEGAL NOVELTIES
ON ERROR
Associate Professor Gabriel TIA-NICOLESCU
Ph. D.
Transilvania University of Brașov
Abstract
We will start by noting that an absolute novelty is to be found in the New Civil Code
concerning the nature of error, which may lead to contract nullity. The novelty resides in the new
Civil Code regulating expressly the error of law as a case of the voidance of a contract, obviously
under strict circumstances. Also new (however, in our opinion only relatively new, as the doctrine
mentioned these aspects under the former law) is de lege lata regulation of the inexcusable error.
However, it is very important that, for the first time, the Civil Code distinguishes accurately and
restrictively between the cases where a error is deemed as essential and may lead to the voidance of
the deed; it is also of interest that, although essential, this type of error may be confirmed. And there
are the concepts of assumed and calculation errors, which were not provided for in the former
Civil Code.
Finally, another novelty in the matter is the adjustment of a contract in case of error, a measure
that could not be ordered under the former civil code, where a error could lead, under certain
circumstances, to contract nullity.
Keywords: Private Law, Civil Law, error, error of law, essential error, inexcusable
error, adjustement of contract.
1. Grounds of the matter. Legal regulation of error
The old civil code provided for error in only one article, art. 954 respectively, a
legal text that generated our entire doctrine concerning this defect of consent. As
we remember, the quoted article referred to the error in substantiam (leading to the
deed being null) and the error in personam (which could not lead to the nullity of a
contract).
Currently, the error as an imperfect consent is regulated in more detail by art.
1.207 – 1.213 of the New Civil Code. However, it is worth mentioning that in this
matter, the main source of inspiration was another code, namely the Italian Civil
Code and not the Civil Code of Quebec; even if the Italian law does not
acknowledge the prejudice, the legal provisions on error are almost identical.
E-mail: titanicolescu@yahoo.com.
Law Review vol. VI, issue 2, Jul
y
-December 2016, p. 42-53
Error. Brief remarks on the legal novelties on error 43
2. Definition and classification
A very simple but accurate definition of error was formulated by the professor
Gh. Beleiu, with whom we agree, especially when the law does not provide such a
definition. The error is the misrepresentation of the reality upon the conclusion of a
legal deed1. This definition is perfectly valid nowadays, even if there have been
important new elements in the matter of error as compared to the old civil code (as
we will see, such new elements mainly concern the types of errors and the
sanctions applicable to the legal deed under error).
More ample debates are required for the classification of errors. According to
the new legal provisions, there are several categories or types, namely:
- Error of fact and error of law – based on the misrepresented circumstances,
that is facts or, on the contrary, legal norms;
- Essential error and non-essential error – based on the importance of the
misrepresented circumstances;
- Excusable error and inexcusable error – based on the fault of the person
invoking the error.
2.1. Error of fact and error of law
A error of fact is that error as to factual elements and circumstances related to
the contract. In the former civil code, this was the only type of error (according to
the classification based on the nature of the misrepresented elements) and
invoking error was not allowed if such error was the result of the lack of
knowledge of legal regulations. Obviously, we expect that even after the adoption
of the new civil code, most of the errors be of fact and that the error of law,
although currently acknowledged by law as a defect of consent, is only
exceptional. In other words, we assume that the error of fact and not the error of
law be the rule in practice.
It is a error of fact:
a) the error concerning the nature of a contract (error in negotio), that is the error
affecting the nature of the concluded legal deed (for instance, a person believes that
he will receive an asset free of charge, but actually, the contract was not a donation
contract, but a sale contract and such person is bound to pay the price2);
1 Gh. Beleiu – Drept Civil român. Introducere în dreptul civil. Subiectele dreptului civil. Ed. Șansa,
București 1993. p. 135.
2 Our judicial practice considers as error as to the nature of a contract the case where an
employee is errorn about the warranty document he has signed, believing he has signed a document
for his capacity of employee and not a document for the real estate credit contracted by the company;
therefore, it was deemed as an error as obstacle (erreur obstacle), because there was no consent
whatsoever upon the conclusion of the document, which led to the absolute nullity for the respective
legal deed (High Court of Cassation and Justice, Commercial Dept, Decision no. 1844/17.03.2005 on
the websitel www.scj.ro).
44 GABRIEL TIŢA-NICOLESCU
b) the error concerning the subject-matter of a contract (error in corpore), that is
the error affecting the asset being the subject-matter of a contract (for instance, a
party may believe he purchases a certain asset but, actually, the subject-matter of
the sale is another asset, a case that is frequently found in the French case-law for
works of art, especially for the paintings which are later proven not genuine3);
c) the error concerning important characteristics of the asset being the subject-
matter of a contract (error in substantiam) is the error that occurs, for example, when
a person believes they purchase a new car, but actually the car is used4;
d) the error concerning a person (error in personam) is the error related to the
person with whom the contract is concluded and it is most frequently found for
intuitu personae contracts, free of charge contracts, as well as for onerous contracts (a
person believes they purchase an asset from the seller, but actually the owner of
the sold asset is another person5).
e) The error concerning other insignificant elements of a contract, which are not
crucial for the conclusion and validity of the legal deed, such as the price, delivery
times, date of contract termination, etc.; such error is also called an indifferent error
(erreur indifferente) or, according to the new civil code, a non-essential error.
The current legal regulation recognises the error of law as well. A error of law
occurs when a party has a misrepresentation of a legal norm, which they did not
know. There have been and still are debates and controversies concerning this type
of error, with respect to whether such error may be deemed as a defect of consent,
as the internal regulations of various countries differ substantially in this matter.
3 The error concerning the authenticity of a painting is a error relating to the substance of the
asset and not a simple error as to its value (Civ. 1, 13 Jan. 1998 and other solutions cited in Code Civile
Dalloz 2012, p. 1273). Also in the field of works of art it was considered that a buyer was error in terms
of a painting from a catalogue, which was said to show scenery created by Dali, and the buyer
understood and believed it was a painting by Dali himself (Civ. 1, 30 Sept 2008, idem, op. cit., p. 1274).
4 The French case-law showed this type of error in the case of a horse that had been bought to
take part in races, but such horse was in fact a pregnant mare, which the buyer had not been aware of
and which was essential for the conclusion of the contract (Civ. 1, 5 Feb. 2002, Code Civil Dalloz, p.
1273). However, we must say that, in the French case-law, a error as to the subject-matter of a contrac t
is assimilated to the error on the substance of an asset (erreur sur la substance).
5 Our case-law constantly stated that the error as to a person is essential when it affects his
physical identity, civil identity or his essential qualities; on the contrary, when the error concerns the
marital status of a person, it cannot be admitted as an imperfect consent (Bucharest Court, Civil
Department., Decision no. 499/1997). The French legal practice showed that there is a error as to a
person also when such person was chosen as an arbitrator in an arbitration procedure, and the party
having chosen such person was error with respect to his capacities; in such case, the arbitration
agreement was cancelled (Civ.2, 13 avr. 1972, Code Civil Dalloz, p. 1278). Furthermore, when the party
believed they conclude a contract with an experienced trade company and not with a natural entity,
as it was proven later (Saint-Denis de la Reunion, 6 oct. 1989, idem., p. 1277) or when a person
(creditor) accepted a trustee without being aware that such trustee was under interdiction, which
affected seriously the consent at the time the security agreement was concluded (Com., 19 fevr. 2003,
idem.)
Error. Brief remarks on the legal novelties on error 45
In our former civil code, the error of law could not be considered an imperfect
consent, as the law applied the principle of nemo censetur ignorare legem (nobody
can be exempted from liability due to their lack of knowledge of the law) as taken
over from the Roman law, a principle that was applicable up to the level of
contract liability; obviously, the absolute application of this principle led to absurd
resolutions, as no person, despite their best legal training, can know of all the laws
passed in a country at a certain time. However, currently, due to the trend in the
legal practice and to the influences of other law systems where the error is deemed
as a defect of consent (for instance, our main source of inspiration in the matter of
error, the Italian Civil Code, as well as the principles of the European Contract
Law6), due to the defining influences of the regulations of the international
commercial law unanimously accepted7, the error of law (erreur de droit) is correctly
acknowledged as an imperfect consent; on the other hand, we must note that
another (main) source of inspiration for our new civil code, namely the Civil Code
of Quebec, refers only to the error of fact and expressly excludes the error of law
from the class of defects of consents8 (under the obvious influence of the French
Civil Code).
The general modern trend of recognising the error of law covers other law
areas as well, namely the criminal law, where art. 30 of the New Criminal Code
expressly regulates that the error of law is a cause for removal of the criminal
nature of a deed, provided that it concerns an extra-criminal legal provision (which
is of absolute novelty in criminal law, as it is well known that art. 51 of the former
criminal code did not acknowledge and even expressly removed the error of law
and provided only for the error of fact).
As is the case with the error of fact, the first requirement to be fulfilled to
classify the error of law as a defect of consent is that such error is essential. The
error of law is deemed as essential when it concerns a legal regulation that is,
6 Art. 4.103 PECL called „Fundamental Error as to Facts or Law” refers to the conditions and effects
of nullity, with no distinction between the error of fact and the error of law.
7 In international trade law and, generally, in the international private law relationships, the
error of law has been accepted traditionally as a defect of consent, as it has been considered that an
individual residing in a country cannot be aware and cannot be held to be aware of the laws of
another state. The UNIDROIT principles applicable to the international trade contracts are extremely
relevant for this purpose; the principles define the error as a misrepresentation of some aspects of law
or of the law at the time when the contract is concluded (art. 3.4 - Definition of Error).
8 L'erreur de droit n'est pas une cause de nullité de la transac tion. Sauf cette exception, la transaction peut
être annulée pour les mêmes causes que les contrats en général (art. 2.634 C.C.Q.). However, we must say
that the Canadian legal literature considers the error as to the nature of the contract as a error of law,
because it leads to „an inaccurate legal opinion” unlike the error of fact, „which bears on the factual
circumstances”. On the other hand, the Canadian common law applicable in the other Canadian
provinces recognises, by virtue of the solutions passed in the case-law, the error of law as a defect of
consent, which influenced the solutions of the courts of Quebec as well (for this purpose, see
M. Tancelin – Des obligations en droit mixte du quebec, Wilson & Lafleurn Publishing, Montreal 2009,
p. 137).
46 GABRIEL TIŢA-NICOLESCU
according to the will of the parties, determining for the conclusion of the contract.
On the contrary, the error of law cannot be invoked for legal provisions that are
accessible and foreseeable (inexcusable error of law).
2.2. Essential error and non-essential error
The old civil code, although very brief and lacking in the matter of error, gave
rise for over a century to countless theories concerning the determining nature or,
on the contrary, non-determining nature of error, which, fortunately, led to
consistent doctrine and case-law solutions. Over the past years, it has been
acknowledged that, from the perspective of its importance, of the consequences it
may generate, there are three types of errors: the error as obstacle, the error as a
defect of consent and the indifferent error (although there were debates concerning
the errors which may be deemed as obstacles or, on the contrary, as defects of
consent). The error as obstacle (erreur-obstacle), also known as the error vitiating the will
was that which affected the nature of the deed (error in negotio) or the identity of a
person (error in personam) and led to the absolute nullity of the contract, as it was
considered that there had not been an accord of will9. The error as defect of consent
led to relative nullity and referred to the error concerning certain elements of the
subject-matter of a contract (error in substantiam) or concerning the subject-matter
of the contract itself (error in corpore). Finally, the indifferent error (erreur indifferente)
was the error which affected insignificant elements of the contract and, therefore,
bore no effects, at the most, it could result in negotiations for the readjustment of
the contract, if applicable.
Apparently, all this doctrine theory concerning the types of errors is no longer
in existence after the new civil code was adopted. For the first time, the New
Romanian Civil Code refers to the concept of essential error. The rule applying in
this matter according to the new civil code is that the cancellation of a deed may be
requested only for an essential error, namely the error should be as to a
determining element for the conclusion of the contract.
Our first remark here is that the former civil code (the Civil Code of 1864) did
not use the concept of essential error. Secondly, the wording in the legal text
implies that the party having made the essential error may request the annulment
of the contract, which leads us to think of a relative and not absolute nullity, unlike
the former civil code, which provided expressly for the absolute nullity. Finally, so
that the error be invoked, a prerequisite must be fulfilled as far as the other party is
concerned, as this is a subjective element, namely, it is required that the other party
should have known or, where applicable had to know that the fact affected by the
error was essential for the conclusion of the contract.
9 The legal doctrine in our country – especially, Prof. Gh. Beleiu – proposed that this type of error
should not lead to absolute nullity, a proposal de lege ferenda which was actually taken over by the
provisions of art. 1.213 of the new Civil Code.
Error. Brief remarks on the legal novelties on error 47
To clear any confusion, the new Civil Code lists expressly and restrictively all
the cases of essential error in art. 1.207 par. (2)10. Thus, an essential error occurs
when it is:
- a error as to the nature (error in negotium) or the subject-matter (error in
corpore) of the contract;
- a error as to the identity of the object of the prestation or to one of its
qualities or to another circumstance deemed as essential by the parties and in the
absence of which the contract would not have been concluded (error in
substantiam);
- a error as to the identity of an individual or one of his qualities in the
absence of which the contract would not have been concluded (error in personam).
After seeing which are the situations deemed by the Civil Code as the grounds
for an essential error, it is easier to define the concept of non-essential error;
obviously, we should deduct that any other type of error except for the ones
deemed by the law as essential errors, is a non-essential error. According to the
law, the error as to the simple motives of the contract is not essential, unless the
parties have agreed that they are determining. The source of inspiration for the
non-essential error is the Canadian law; the Civil Code of Quebec excludes the
cases of „error of minor importance”, such as calculation (as well as the error as to the
economic value, except in case of prejudice), the error of form or the so-called error
due to personal reasons11.
Finally, a variety of non-essential error as regulated expressly by the new Civil
Code is the calculation error. A simple calculation error does not lead to the
annulment of the contract, but to its adjustment, except when, if it becomes a error
as to quantity, it was essential for the conclusion of the contract. According to the
law, a calculation error shall be remedied upon the request of either party.
2.3. Inexcusable error and assumed error
Certainly, when we refer to error, we mean the situations where an individual
had a misrepresentation of the reality (either a misrepresentation of the factual
circumstances or of the legal circumstances of a legal regulation), and such
misrepresentation could not be avoided by such individual. In other words, such
10 The wording of art. 1.207 par. (2) NCC is almost identical to the wording in art. 1.429 of the
Italian Civil Code.
11 The error due to personal reasons is, in the Canadian contract law, is a error exclusively
concerning the personal reasons why a party enters into a contract, whic h, at the same time, would be
absolutely neutral for another individual. For instance, a collector wants to buy a work by the painter
Picasso, painted between 1920 and 1930. If such buyer later discovers that the bought painting,
although made by Picasso, was painted in 1918, the collector could not request the cancellation of the
sale unless he expressly stated (by means of a contract clause) that he was interested only in certain
works by, namely the ones painted between 1920-1930 (Collection du droit 2011 – 2012, Obligations et
contracts, Y. Blais Publishing, Québec, 2011, p. 42).
48 GABRIEL TIŢA-NICOLESCU
individual, although quite careful upon the conclusion of the deed, could not
notice the erroneous circumstance; therefore, his was an excusable error, which he
did not assume and, which, with reasonable diligence, he could not avoid. This
was also the reasoning when the error as defect of consent was regulated, as,
otherwise, any individual could avoid the performance of an obligation by availing
himself of a false error having affected his consent when signing the contract.
Our new Civil Code does not define the concept of excusable error, but it defines
that of inexcusable error, namely this cannot vitiate the consent12. Therefore, unlike the
old code, the current civil code emphasises this aspect by defining the concept of
inexcusable error. Thus, according to art. 1.208 NCC, the contract cannot be annulled if
the fact which it affects could be known provided that reasonable diligence was
employed. The same principle applies for the error of law which, as we have seen,
according to the law cannot be invoked for accessible and foreseeable legal
provisions. Therefore, an inexcusable error occurs when the party invoking it was
grossly negligent (art. 3.5 par. 2 of the UNIDROIT Principles) at the time the contract
was concluded; however, our civil code preferred to use the wording reasonable
diligence, taken from the Italian Civil Code (art. 1.431 which refers to normale
diligenza). Obviously, in practice, it will be extremely difficult to determine how
excusable the error was or how diligent was the party invoking the error. Certainly,
the courts of law will have the task of settling such matters, taking into consideration
the particular circumstances of every case to be able to apply a concrete assessment
pattern concerning „the reasonable diligence” shown by a party13.
We may refer here also to the concept of assumed error, which is defined
separately by the law, but which bears the same effects as an inexcusable error.
Thus, according to art. 1.209 NCC, a error as to an element for which the risk of
error was assumed or, where applicable, had to be assumed by the claiming party
does not void the contract. For this purpose, in our opinion it is important to note
that the Principles of the European Contract Law (a code of international contract
law accepted also by our country ) approach the two concepts together – the
inexcusable and assumed error. Thus, the party claiming to have been error cannot
invoke the error if such error was inexcusable or assumed by such party14.
12 L'erreur inexcusable ne constitue pas un vice de co nsentement (art. 1.400 alin. 2 C.C.Q.)
13 In our opinion, for an ample and relevant debate on the excusable nature or, on the contrary,
inexcusable nature of the error, see M. Tancelin, D. Gardner – Jurisprudence comente e sur les obligations,
Wilson & Lafleur Publishing, Montreal, 2010, p. 67. We hereby briefly present the criteria used in the
case Legare vs. Morin-Legare, which determined the judge to consider that the contracting party may
invoke an excusable error, namely: such party did not have knowledge of the business area (company
law); in advance, he consulted an accountant of the company issuing the shares being the subject-
matter of the transaction, as well as a lawyer; he requested a draft of the agreement one week before
its signing; he took part in the discussions preceding the conclusion of the contract; he trusted the
other party (specifically, his brother-in-law).
14Art.4.103 par.(2) PECL: „However a party may not avoid the contract if: (a) in the circumstances its
error was inexcusable, or (b) the risk of the erro r was assumed, or in the circumstances should be borne, by it”.
Error. Brief remarks on the legal novelties on error 49
3. Invoking error
Therefore, for a error as defect of consent to be invoked two conditions shall be
fulfilled, namely the error must be essential and excusable. Under certain
circumstances a third condition may be required, namely the other party be aware
of the error. The legal literature of Quebec on this matter distinguishes between the
essential element and the personal element having become essential; in the first
case, the essential element does not have to be known by the other party, as it is an
essential element for any individual; in the second case, the personal element
should be communicated to the party, as otherwise it cannot be deemed as an
essential element leading to the nullity of the contract.
The error bears certain important legal effects, as it is believed it affects (to a
lesser or greater extent) the consent of the signing party to a contract. The error
may vitiate the consent both if the contract was concluded between parties that
were present and in absence thereof (inter absentes), by means of communication
sending the offer or, if applicable, receiving the offer15. The basic applicable
principle in this matter is the principle of good faith, meaning that the error party
cannot avail himself of it contrary to the requirements of good-faith.
The error as defect of consent, irrespective of whether it is essential or non-
essential, of fact or of law, excusable or inexcusable, must be invoked by the party
claiming to have been error upon the conclusion of the contract, as such party has
an interest of claiming the occurrence of error. Therefore, the party must prove
that, should he have known the circumstance of fact or of law relating to which he
was errorn, such party would not have entered into the contract. In other words, as
shown by the legal literature, there is no defect of consent when the party would
have entered into the contract despite being aware of the error16.
Therefore, a very important matter emerges from all the above, namely the
evidence of the error bya party, which is quite difficult sometimes, taking into
consideration the rather psychological elements defining this defect of consent.
Such error may be proven using any means of evidence (documents, witnesses,
assumptions etc.), as things do not seem very complicated as we are talking about
a legal deed; more difficult will be to prove subjective aspects related to the nature
of error, such as how essential such error was and, especially, how excusable it
may be deemed.
15 According to art. 1.211 NCC, the provisions on the error apply appropriately also when it is a
error as to the declaration of consent or when such declaration was sent inaccurately by another
individual or by communication means.
16 C. Hamangiu, I. Rosetti-Blnescu, Al. Bicoianu – Tratat de Drept Civil, Vol. I. All Publishing,
Bucharest 1998, p. 82.
50 GABRIEL TIŢA-NICOLESCU
4. Effects of error
Above all, in terms of the effects of error, we must note the significant
distinction made by the current civil code as compared to the Civil Code of 1864.
As we could infer from the above, the two types of error referred to in the current
civil code (essential and non-essential error) bear the same effects; also, unlike the
old civil code which provided for absolute nullity as the effect of the erreur-
obstacle and for relative nullity for the other cases of error, the new civil code gives
the same solution irrespective whether the error is in negotium, in substantiam, in
personam, or in corpore. Therefore, according to the new regulation, we cannot talk
about a error as an obstacle or vitiating the will of the party as, unlike the former
regulation, it is deemed that none of the errors can irremediably vitiate the will of
the parties.
The sanction characterising and applying generally to error, irrespective of its
type, is currently, according to the law, the relative nullity of the contract. In fact,
this sanction is an application of the provisions of the current civil code on nullity
and these provisions themselves are, in their turn, new in our private law. We refer
to the principle set out by art. 1.251 NCC, according to which any defect of consent
leads to the relative nullity of the legal deed so concluded, as well as to the
assumption of relative nullity as set out by 1.252 NCC. It is worth noting that,
essentially, this is one of the fundamental criteria which makes the distinction
between the absolute and relative nullity, namely the relative nullity may be
confirmed or ratified by the parties; such confirmation requires the right of the
parties to readjust the vitiated contract. The possibility of adjusting/confirming the
contract applied and still applies to relative nullity, as well as the error as a defect
of consent
The actual novelty here is the possibility of adjusting the contract to any type of
error, even to the essential error; furthermore, it provides for a special procedure of
contract adjustment in case of error (although the relative nullity can be confirmed,
according to its definition). Practically, we refer to the possibility of removing the
cause of nullity by performing the deed vitiated by error, which was not possible
under the former civil code, when the error vitiated the will of the party. More
precisely, the law sets out that, where a party is entitled to invoke the possibility of
contract annulment for error (for instance, the buyer of an asset), such party cannot
do it if the other party (the seller) declares that he wants to performs the contract or
performs the contract as it was understood by the buyer. In such case, the contract
is deemed to have been concluded as it was understood by the party entitled to
invoke the cancellation of the contract (in our example, the buyer).
So that the contract may be adjusted, a certain procedure shall be followed,
meant to ensure the good performance of the contract17. Thus, unless he requests
17 The Italian Civil Code, on which the regulation of this matter is based, in art. 1.432, provides
for the possibility of maintaining the altered contract, but it makes no reference to any notification and
no performance time.
Error. Brief remarks on the legal novelties on error 51
the annulment of the contract and wants to request the performance of the
contract, the party entitled to invoke the its cancellation shall inform the other
party about the manner he understood the contract; no later than 3 months after
being notified, the other party shall agree on the performance or shall perform the
contract without delay, as it was understood by the errorn party. If the declaration
was made and communicated to the errorn party within this time or if the contract
was performed, the right of obtaining the annulment ceases and the notification by
the errorn party is not binding. Such possibility of adjusting the contract also
occurs when the errorn party referred to a court for the annulment of the contract.
The notification to the other party shall comply with the same requirements, as
well as with the 3-month period.
REFERENCES
[1] Gh. Beleiu – Drept Civil român. Introducere în dreptul civil. Subiectele dreptului
civil. Ed. Șansa, București 1993. p. 135.
[2] Our judicial practice considers as error as to the nature of a contract the case
where an employee is error about the warranty document he has signed, believing
he has signed a document for his capacity of employee and not a document for the
real estate credit contracted by the company; therefore, it was deemed as an error as
obstacle (erreur obstacle), because there was no consent whatsoever upon the
conclusion of the document, which led to the absolute nullity for the respective
legal deed (High Court of Cassation and Justice, Commercial Dept, Decision
no. 1844/17.03.2005 on the websitel www.scj.ro).
[3] The error concerning the authenticity of a painting is a error relating to the
substance of the asset and not a simple error as to its value (Civ. 1, 13 Jan. 1998 and
other solutions cited in Code Civile Daloz 2012, p. 1273). Also in the field of works of
art it was considered that a buyer was errorn in terms of a painting from a
catalogue, which was said to show scenery created by Dali, and the buyer
understood and believed it was a painting by Dali himself (Civ. 1, 30 Sept 2008,
idem, op. cit., p. 1274).
[4] The French case-law showed this type of error in the case of a horse that
had been bought to take part in races, but such horse was in fact a pregnant mare,
which the buyer had not been aware of and which was essential for the conclusion
of the contract (Civ. 1, 5 Feb. 2002, Code Civil Dalloz, p. 1273). However, we must
say that, in the French case-law, a error as to the subject-matter of a contract is
assimilated to the error on the substance of an asset (erreur sur la substance).
[5] Our case-law constantly stated that the error as to a person is essential
when it affects his physical identity, civil identity or his essential qualities; on the
contrary, when the error concerns the marital status of a person, it cannot be
admitted as an imperfect consent (Bucharest Court, Civil Department., Decision
52 GABRIEL TIŢA-NICOLESCU
no. 499/1997). The French legal practice showed that there is a error as to a person
also when such person was chosen as an arbitrator in an arbitration procedure, and
the party having chosen such person was errorn with respect to his capacities; in
such case, the arbitration agreement was cancelled (Civ.2, 13 avr. 1972, Code Civil
Dalloz, p. 1278). Furthermore, when the party believed they conclude a contract
with an experienced trade company and not with a natural entity, as it was proven
later (Saint-Denis de la Reunion, 6 oct. 1989, idem., p. 1277) or when a person
(creditor) accepted a trustee without being aware that such trustee was under
interdiction, which affected seriously the consent at the time the security
agreement was concluded (Com., 19 fevr. 2003, idem.)
[6] Art. 4.103 PECL called „Fundamental Error as to Facts or Law” refers to the
conditions and effects of nullity, with no distinction between the error of fact and
the error of law.
[7] In international trade law and, generally, in the international private law
relationships, the error of law has been accepted traditionally as a defect of
consent, as it has been considered that an individual residing in a country cannot
be aware and cannot be held to be aware of the laws of another state. The
UNIDROIT principles applicable to the international trade contracts are extremely
relevant for this purpose; the principles define the error as a misrepresentation of
some aspects of law or of the law at the time when the contract is concluded (art.
3.4 - Definition of Error).
[8] L'erreur de droit n'est pas une cause de nullité de la transaction. Sauf cette
exception, la transaction peut être annulée pour les mêmes causes que les contrats en
général (art. 2.634 C.C.Q.). However, we must say that the Canadian legal literature
considers the error as to the nature of the contract as a error of law, because it leads
to „an inaccurate legal opinion” unlike the error of fact, „which bears on the factual
circumstances”. On the other hand, the Canadian common law applicable in the
other Canadian provinces recognises, by virtue of the solutions passed in the case-
law, the error of law as a defect of consent, which influenced the solutions of the
courts of Quebec as well (for this purpose, see M. Tancelin – Des obligations en droit
mixte du quebec, Wilson & Lafleurn Publishing, Montreal 2009, p. 137).
[9] The legal doctrine in our country – especially, Prof. Gh. Beleiu – proposed
that this type of error should not lead to absolute nullity, a proposal de lege ferenda
which was actually taken over by the provisions of art. 1.213 of the new Civil
Code.
[10] The wording of art. 1.207 par. (2) NCC is almost identical to the wording
in art. 1.429 of the Italian Civil Code.
[11] The error due to personal reasons is, in the Canadian contract law, is a error
exclusively concerning the personal reasons why a party enters into a contract,
which, at the same time, would be absolutely neutral for another individual. For
instance, a collector wants to buy a work by the painter Picasso, painted between
1920 and 1930. If such buyer later discovers that the bought painting, although
Error. Brief remarks on the legal novelties on error 53
made by Picasso, was painted in 1918, the collector could not request the
cancellation of the sale unless he expressly stated (by means of a contract clause)
that he was interested only in certain works by, namely the ones painted between
1920-1930 (Collection du droit 2011 – 2012, Obligations et contracts, Y. Blais
Publishing, Québec, 2011, p. 42).
[12] L'erreur inexcusable ne constitue pas un vice de consentement (art. 1.400 alin. 2
C.C.Q.)
[13] In our opinion, for an ample and relevant debate on the excusable nature
or, on the contrary, inexcusable nature of the error, see M. Tancelin, D. Gardner –
Jurisprudence comentee sur les obligations, Wilson & Lafleur Publishing, Montreal,
2010, p. 67. We hereby briefly present the criteria used in the case Legare vs. Morin-
Legare, which determined the judge to consider that the contracting party may
invoke an excusable error, namely: such party did not have knowledge of the
business area (company law); in advance, he consulted an accountant of the
company issuing the shares being the subject-matter of the transaction, as well as a
lawyer; he requested a draft of the agreement one week before its signing; he took
part in the discussions preceding the conclusion of the contract; he trusted the
other party (specifically, his brother-in-law).
[14] Art. 4.103 par.(2) PECL: „However a party may not avoid the contract if: (a) in
the circumstances its error was inexcusable, or (b) the risk of the error was assumed, or in
the circumstances should be borne, by it”.
[15] According to art. 1.211 NCC, the provisions on the error apply
appropriately also when it is a error as to the declaration of consent or when such
declaration was sent inaccurately by another individual or by communication
means.
[16] C. Hamangiu, I. Rosetti-Blnescu, Al. Bicoianu – Tratat de Drept Civil,
Vol. I. All Publishing, Bucharest 1998, p. 82.
[17] The Italian Civil Code, on which the regulation of this matter is based, in
art. 1.432, provides for the possibility of maintaining the altered contract, but it
makes no reference to any notification and no performance time.
