Edited by Jan M. Smits
Chapter 47: Mistake*
A mistake is ‘a belief that is not in accord with the facts’ (Restatement, Contracts 2d, s.151; Kramer and Probst, 2000, p. 6). In a contractual setting the question is whether a party whose expectations of a contract have been frustrated by a mistake should be permitted to disappoint the expectation of the other party that a contract has come about. In respect of a given transaction, there is a myriad of circumstances about which mistakes might be made. In addition, one or both of the parties might be mistaken about the same or different aspects, and a party (or both of them) might at the same time be labouring under a number of mistakes about different issues. As a result of this complexity and the interplay of basic principles of contract law (Kramer and Probst, 2000, p. 1), national legal systems offer a ‘perplexing abundance of different viewpoints’ on when a mistake is operative (Zweigert and Kötz, 1998, p. 423). The treatment of mistake in the civilian tradition reflects the development of the casuistic notions of Roman law by the authors of the jus commune (Kötz and Flessner, 1997, pp. 172–3, 179; Kramer and Probst, 2000, pp. 8–9).
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