Error in motive and error in nomine

Errores in corpore, in persona, in negotio and in substantia were the most important forms of operative mistakes. If one of the parties was labouring under any of them, a valid contract (of sale) could not come into existence.

In later centuries they were often described as mistakes relating to the content of the contract. Opposed to them are mistakes merely in the motive of the parties' declarations. These, at least as far as the law of contract is concerned, are generally irrelevant.⁵² What has prompted a person to enter into a contract is entirely his own business. As long as the motive remains outside the content of the contract, it is of no concern to the contractual partner, and the consequences of any misconception in that regard¹ must normally be borne by the declarant himself. The Roman lawyers did not conceptualize the problem in this way, but the Digest does not contain cases where the contract would have been regarded as invalid because of an error in motive.⁵³

Another type of mistake, which was irrelevant, was the error in nomine:

"Plane si in nomine disscntiamus, verum de corpore constet, nulla dubitatio est, quin valcat cmptio et venditio: nihil cnim facit error nominis, cum de corpore constat."⁵⁴

Both parties have the same object (for instance a particular slave) in mind, but one of them errs as to its name. Such a mistake does not affect the content of the contract and hence does not exclude consensus. This is the reason, incidentally, why Ulpian in D. 18, 1, 9 pr. specifically refers to the fact that the slave in question was not present when the contract of sale was concluded ("[l]dem est, si ego rne Stichum, tu Pamphilum absentem vendere putasti" ): here we are dealing with an error in corpore, with the result "nullam esse emptionem". The two parties to the contract have two different slaves in mind.

Had the slave been present, an error in corpore could hardly have occurred. We would have had a case of a mere error in nomine, and the contract would have been valid.

For details, see Rothocft, op. at., note 25, pp. 80 sqq., 36 sqq., 283 sqq. The policy on which this distinction is based has been spelt out succinctly by Roscoe Pound, Jurisprudence, vol. IV (1959), p. 457: "The reason for denying relief where there is mistake only in the motive is the need of weighing against the individual interests of one who acts on mistaken motive the social interest in the security of transactions. The other party had nothing to do with the mistake and it does not inhere in the declaration of the will. But what is decisive is the economic reason, the security of transactions, which should be upheld in order to maintain the economic order, unless failure of an essential element of the transaction makes a strong case of impairment of the interest in individual free self-assertion. Motives are too shifting, too varying in degree of weight, too complex and too little susceptible of proof to be weighed against the security of transactions." Cf., further, Flume, AT, § 25, and Make Diesselhorst, "Zum Irrtum bei Vertragsschluss", in: Sympotka Franz Wieacker (1Y70), pp. 186 sqq.

³³ The matter is different with regard to testamentary dispositions; cf. Hans Josef Wieling, Testamentsausle%utu; im romischen Recht (1972), pp. 208 sqq.; Honscll/Mayer-Maly/Selb, p. 124.

³⁴Ulp. D. 18. 1. 9. 1.

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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 in motive and error in nomine

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