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,