Error and the protection of the promisee

(a) Modern approaches: English law and German law

Our overview of the Roman sources on the effect of error on the formation of contract may have left the modern reader slightly startled.

The possibility of attacking the validity of a contract and thus escaping liability on the ground of error is a powerful legal weapon, and one expects the law to have granted some sort of protection to the reasonable reliance of the other party. Modern English law, for instance, attaches great significance to the position of the promisee. Despite their frequent use of will-related terminology^[3097] and, particularly, their obvious delight in the catch-phrase "consensus ad idem", as borrowed from Pothier, the English courts traditionally look at the expression of the will in order to determine whether (and with what content) a contract has been concluded... [F]or it is common learning that the intent of a man cannot be tried, for the Devil himself knows not the intent of a man", was the pragmatic insight of Brian CJ as far back as 1478,^[3098] and more recent writers have explained:

"[T]he current phrase 'the intention of the parties governs the contract', is really only true to this extent; that it governs the contract where both parties arc agreed what the intention was. Where there is a dispute as to the intention, the contract, or rather the contractual liability, is governed by the intention, as it is presumed from that sense which, under all the circumstances, the judge thinks ought fairly to be attached to the promise."^[3099]

This "objective test" approach is closely related to, if not derived from, estoppel by representation:^[3100] a party is bound by his declaration, because such declaration — whether or not it properly represents the declarant's true intention—is apt to engender reliance in the person of the addressee.^[3101] ^{^[3102] Of course, such reliance deserves protection only where it is reasonable.}

Thus, in particular, the promisor's mistake must not have been attributable to the promisee himself. Contrary to all Continental legal systems, English law has in fact made up a special category of the cases where the promisee has induced the promisor's mistake by some misrepresentation (innocent or otherwise).⁷⁵ Such misrepresentation renders the contract voidable at the option of the promisor.^[3103] Also, a mistake by one party may be operative (that is, have the effect of negativing consent) if it is known to the other party.^[3104] But apart from that, a mere unilateral mistake^[3105] does not normally affect the validity of the contract. English law thus provides a very far- reaching protection for the innocent promisee.^[3106] Arguably, it even overshoots the mark.^[3107] Modern German law, for instance, allows rescission of a contract on the basis of error much more readily,^[3108] but imposes a duty on the rescinding party to compensate the party, to whom the declaration of intention had been made, for the damage sustained in relying upon the validity of the contract.^[3109] This claim for compensation, incidentally, is not based on fault and cannot therefore be regarded as a (statutory) emanation of the culpa in contrahendo doctrine.^[3110] It finds its justification in the fact that the invalidity of the contract is attributable to the "sphere" of the maker of the declaration.⁸⁴

(b) The position in Roman law

None of these devices was employed by the Roman lawyers. Neither was the promisor only relieved of his contractual obligation when the promisee did not deserve protection, nor was the latter granted a claim to recover his reliance interest. Nor, as a rule, did it matter whether the promisor could be blamed for his mistake; whether, in other words, the error was excusable or not.⁸⁵

About the reasons for this obvious lack of discrimination one can only speculate.

First of all, it must, of course, be kept in mind that not every error excluded consent. The mistake had to relate to one of the essential elements of the contract. More particularly, the narrowness of the Roman doctrine of error in substantia has been described "as startling from a modern perspective".^[3111] ^{^[3112] Even mistakes regarding essential characteristics of the object of the contract, which could greatly disadvantage the purchaser, were ignored: by whom it had been made, what capacities or attributes it possessed, whether it was able to bear fruit, etc. Thus, the ambit of operative errors in itself represented a kind of compromise between the interests of both parties concerned. Secondly, the potential for a deviation between intention and declaration was smaller in Roman law than it is today. Telegraphy, for instance, did not exist and the problems arising from the incorrect transmission of a telegram became a matter of concern only in the second half of the 19th century.^[3113] Furthermore, we have repeatedly stressed^[3114] that sale in early Roman law, being essentially a market transaction, was tantamount to cash sale. It was concluded inter praesentes, and the conclusion of the contract and the execution of the mutual performances necessarily coincided. It is obvious that errores in negotio, in pretio or in corpore are much less likely to occur (if not virtually impossible) where vendor and purchaser are present^[3115] and immediately exchange their mutual performances. By the time of the later Roman Republic, the formless emptio venditio had, of course, become a fully executory contract. But even then, and throughout the time of classical Roman law, sale to ultimate consumers in actual practice probably remained a transaction that was normally immediately executed. By and large, only merchants engaged in long-distance trading. They, in turn, appear to have formed reasonably close-knit groups, developing and maintaining their own standards of trade?¹ Within an established market, as Frier argued recently,⁹² merchants tend to look beyond the single transaction and to be motivated by the desire for repeat orders.
They realize that it is to their own advantage to honour their undertakings without much wailing and lamenting. Both vendors and purchasers are usually keen to engender confidence and to build up a reputation for reliability. Under these circumstances, the possibility of attacking the validity of a contract on the ground of mistake was unlikely to lead to an unacceptable amount of confusion and commercial inconvenience. Penultimately, it must be remembered that we are dealing here with a gradual development from a strictly objective, declaration-oriented approach towards a more flexible and individualistic one.⁹³ This development was in full swing during the time of classical Roman law. Even at the time of Ulpian, controversies still persisted.⁹⁴ Only slowly did the idea gain ground that a unilateral mistake can vitiate the contract. Thus, the picture presented over the previous pages is representative only of late classical jurisprudence. From this time onwards any appreciation for certainty of the law, for the inner discipline connected with form and formalism and for generally accepted social standards, faded away very quickly, anyway, and thus one could hardly expect post-classical jurisprudence to develop criteria which were suitable for checking the increasing emphasis on the intention of the parties.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Error and the protection of the promisee

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