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Published online by Cambridge University Press: 06 August 2009
Case
As her daughter Angela was due to be called to the bar, Lady Windermere decided to make Angela a present of her own diamond-studded fan and instructed her lawyer to draw up a deed of gift. Arriving in a hurry before the ceremony, she signed the deed without more than a glance, only to discover later that the gift had been made in favour of her own estranged brother Angel. After her departure but before Lady Windermere's discovery, Angel formally accepted the gift but has not yet received the fan. What remedy, if any, is available against Angel?
Discussions
Austria
The wrong person has been declared the beneficiary of the gift due to the lawyer's mistake. This could be qualified either as a mistake as to identity (§ 873 ABGB) or a mistake of declaration (§ 871 ABGB) but as the conditions and results are the same the qualification is unimportant. This mistake is fundamental but neither provision on mistake applies because the three alternative conditions of § 871 ABGB are not fulfilled: (i) Angel did not cause the mistake; in fact Lady Windermere was careless when signing the deed so it was she who caused the lawyer's mistake; (ii) Angel did not notify the mistake nor should he have done; and (iii) the mistake was not declared in good time.
As the mistake regards a party's name, the doctrine of falsa demonstratio may be considered.
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