1 - General introduction

Summary

What is at issue in the law of mistake, fraud and duties to inform?

Why did we choose to look at mistake, fraud and duties to inform? At first sight, the choice appears straightforward: in order to examine the world of European contract law it is quite logical to start at the beginning with contract formation. The general theory of defects of consent provides a safe starting place. The title indicates perhaps that civil law inspires this enquiry. These three initial assumptions will be examined shortly. Before turning to the heart of this study however, a preliminary terminological explanation is required. Mistake has been adopted for the sake of consistency throughout even though it is the term for an English legal concept; ‘mistake’ thus covers the Scots law of error, as well as erreur (French and Belgian law), errore (Italian law), erro (Portuguese law), Irrtum (Austrian and German law), dwaling (Dutch law) and plani(Greek law). It was generally agreed that the use of an English legal term was innocuous in this instance. Likewise, fraud has been used to refer to dol (French and Belgian law), dolo (Italian law), dolo (Portuguese law), arglistige Täuschung (Austrian and German law), bedrog (Dutch law) and apati (Greek law). In contrast, the term ‘duty to inform’ has been chosen so as to avoid using specifically English legal concepts (misrepresentation and duties of disclosure) to denominate concepts existing in other legal systems where such a transposition would be both erroneous and misleading.