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Error, Deceit & Duress on A Contract Bünyamin Güler, Cem Yücesan & Sercan Sert SRH Hochschule Berlin, December 08
Bünyamin Güler, Cem Yücesan & Sercan Sert,
SRH Hochschule Be
Agenda • • • •
Error Deceit Duress Summary
Error • If the declaration of will suffers from certain defects then it’s void or, at any rate, voidable. • Declarations of will which are void are without effect from the beginning. • Voidable declarations of will are indeed valid, but they can be invalidated by challenging their validity.
Section 116 Mental Reservation • “A declaration of intent is not void by virtue of the fact that the person declaring has made a mental reservation that he does not want the declaration made. The declaration is void if it is to be made to another person who knows of the reservation.”
Section 118 Lack of Seriousness • “A declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void.”
Section 119 Voidability for Mistake (Declaration Error) • (1) A person who, when making a declaration of intent, was mistaken about its contents or had no intention whatsoever of making a declaration with this content, may avoid the declaration if it is to be assumed that he would not have made the declaration with knowledge of the factual position and with a sensible understanding of the case. • (2) A mistake about such characteristics of a person or a thing as are customarily regarded as essential is also regarded as a mistake about the content of the declaration.
Mistake of Individualisation • If he or she has confused the actual subject matter of the transaction or the actual person with whom the person is dealing with some other.
Mistake of Expression • If the person making the declaration mistakenly says, writes or does something other than what he or she actually intended.
Section 120 Voidability for Incorrect Transmission (Error in Communication) • A declaration of intent that has been incorrectly transmitted by the person or facilities used for its transmission may be avoided subject to the same condition as a declaration of intent made by mistake may be avoided under section 119.
Deceit • The intentional expression of a false impression; a misrepresentation of fact, a fraudulent, misrepresentation by which one deceives another, who has no means of detecting the fraud, to the injury and damage of the latter.
http://legal-dictionary.thefreedictionary.com/deceit
Deceit • The party injured must have no means of detecting the fraud, for if he has such means, his ignorance will not help him in that case and becomes the willing fool of the others cunning and ‘volenti non fit injuria‘ (to a willing person, no injury is done).
http://legal-dictionary.thefreedictionary.com/deceit
Section 123 Voidability on the Grounds of Deceit or Duress • (1) A person who has been induced to make a declaration of intent by deceit or unlawfully by duress may avoid his declaration. • (2) If a third party committed this deceit, a declaration that had to be made to another may be avoided only if the latter knew of the deceit or ought to have known it. If a person other than the person to whom the declaration was to be made acquired a right as a direct result of the declaration, the declaration made to him may be avoided if he knew or ought to have known of the deceit.
Duress • Compulsion by threat or force; coercion; constraint. • Such constraint or forcing renders void a contract or any other document performed under its influence. • Main Types: Physical Duress Economic Duress http://dictionary.reference.com/browse/DURESS
Physical Duress • To The Person: consists of actual or threatened violence to one contracting party, or their family, by or on behalf of the other contracting party
• To Goods: threats concerning goods; one party refuses to release the goods belonging to the other party until the other party enters into a contract with them
Economic Duress • Unlawful use of economic pressure; threats against the free will of an individual by forcing and leaving him or her no choice but to accept an agreement and such.
Summary •
Person signing a contract should have legal capacity to give consent; should be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.
Sources • An Introduction to German Law by Gerhard Robbers • http://legal-dictionary.thefreedictionary.com/deceit • http://dictionary.reference.com/browse/DURESS
Thank you for your attention...
Bünyamin Güler Cem Yücesan Sercan Sert
Bünyamin Güler, Cem Yücesan & Sercan Sert,
SRH Hochschule Be
Agenda • • • •
Error Deceit Duress Summary
Error • If the declaration of will suffers from certain defects then it’s void or, at any rate, voidable. • Declarations of will which are void are without effect from the beginning. • Voidable declarations of will are indeed valid, but they can be invalidated by challenging their validity.
Section 116 Mental Reservation • “A declaration of intent is not void by virtue of the fact that the person declaring has made a mental reservation that he does not want the declaration made. The declaration is void if it is to be made to another person who knows of the reservation.”
Section 118 Lack of Seriousness • “A declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void.”
Section 119 Voidability for Mistake (Declaration Error) • (1) A person who, when making a declaration of intent, was mistaken about its contents or had no intention whatsoever of making a declaration with this content, may avoid the declaration if it is to be assumed that he would not have made the declaration with knowledge of the factual position and with a sensible understanding of the case. • (2) A mistake about such characteristics of a person or a thing as are customarily regarded as essential is also regarded as a mistake about the content of the declaration.
Mistake of Individualisation • If he or she has confused the actual subject matter of the transaction or the actual person with whom the person is dealing with some other.
Mistake of Expression • If the person making the declaration mistakenly says, writes or does something other than what he or she actually intended.
Section 120 Voidability for Incorrect Transmission (Error in Communication) • A declaration of intent that has been incorrectly transmitted by the person or facilities used for its transmission may be avoided subject to the same condition as a declaration of intent made by mistake may be avoided under section 119.
Deceit • The intentional expression of a false impression; a misrepresentation of fact, a fraudulent, misrepresentation by which one deceives another, who has no means of detecting the fraud, to the injury and damage of the latter.
http://legal-dictionary.thefreedictionary.com/deceit
Deceit • The party injured must have no means of detecting the fraud, for if he has such means, his ignorance will not help him in that case and becomes the willing fool of the others cunning and ‘volenti non fit injuria‘ (to a willing person, no injury is done).
http://legal-dictionary.thefreedictionary.com/deceit
Section 123 Voidability on the Grounds of Deceit or Duress • (1) A person who has been induced to make a declaration of intent by deceit or unlawfully by duress may avoid his declaration. • (2) If a third party committed this deceit, a declaration that had to be made to another may be avoided only if the latter knew of the deceit or ought to have known it. If a person other than the person to whom the declaration was to be made acquired a right as a direct result of the declaration, the declaration made to him may be avoided if he knew or ought to have known of the deceit.
Duress • Compulsion by threat or force; coercion; constraint. • Such constraint or forcing renders void a contract or any other document performed under its influence. • Main Types: Physical Duress Economic Duress http://dictionary.reference.com/browse/DURESS
Physical Duress • To The Person: consists of actual or threatened violence to one contracting party, or their family, by or on behalf of the other contracting party
• To Goods: threats concerning goods; one party refuses to release the goods belonging to the other party until the other party enters into a contract with them
Economic Duress • Unlawful use of economic pressure; threats against the free will of an individual by forcing and leaving him or her no choice but to accept an agreement and such.
Summary •
Person signing a contract should have legal capacity to give consent; should be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.
Sources • An Introduction to German Law by Gerhard Robbers • http://legal-dictionary.thefreedictionary.com/deceit • http://dictionary.reference.com/browse/DURESS
Thank you for your attention...
Bünyamin Güler Cem Yücesan Sercan Sert
