Erreur Flashcards
(11 cards)
The concept of erreur in French law
Erreur Obstacle
No meeting of minds at all.
Leads to nullité absolue (absolute nullity; the contract is treated as if it never existed).
Examples: Mistake as to the nature of contract (gift vs. sale) or object (believing you are selling/buying different items).
Erreur Vice du Consentement
There is some consent, but it’s vitiated (flawed).
Leads to nullité relative (voidable at the request of the mistaken party).
Article 1110 Code civil covers two main types:
Erreur sur la substance (mistake about a substantial quality)
Erreur sur la personne (mistake about the other contracting party’s identity, if identity is crucial).
Limits in French Law
Must be “excusable” (no annulment if you should have known better).
No relief if risk was assumed (“aléa”).
No relief for mere mistake as to value or motive (unless there was fraud/dol).
Cue Card 2: The Narrow Doctrine of Mistake in English Law
Key Points
Objective Theory of Contract
Courts focus on what a reasonable person would understand from each party’s words or actions.
Subjective intentions are usually ignored if not expressed.
Types of Mistake in English Law
Common Mistake: Both parties share the same fundamental mistaken assumption, making performance impossible (Great Peace test).
Unilateral Mistake: One party is mistaken, and the other knew or ought to have known of that mistake.
Rectification: Correcting a written document that fails to reflect the true agreement (shared mistaken belief about the written terms).
Misrepresentation vs. Mistake
Many scenarios called “mistake” in other legal systems (e.g., an error about qualities) might be misrepresentation in English law.
Misrepresentation often offers rescission (and sometimes damages), but does not rely on proving a contract never existed.
Cue Card 3: Jersey Law on Mistake – The Blend of French & English Influences
Key Points
French Terminology
Jersey still refers to erreur obstacle (no true consent) vs. erreur vice du consentement (voidable contract).
Marett v Marett: Cites these concepts, acknowledging their French origin.
Objective Emphasis
Murray v Camerons Limited & Hore v Valmorbida confirm that Jersey courts adopt an objective approach to decide if there was a valid agreement.
This aligns with English common law methods.
La Motte Garages Ltd v Morgan (1992)
Example of a “mutual mistake” case under an English-style framework.
The court enforced the contract based on a reasonable person test, even though the parties were at cross purposes on price.
Under a purely French approach, it might have been considered erreur obstacle and void.
Many “Mistake” Cases are Actually Misrepresentations
E.g., Scarfe v Walton, McIlroy v Hustler, Channel Hotels v Rice, Kwanza Hotels v Sogeo:
All involve one party being induced by false statements.
Courts often cite both French sources (Domat, Pothier) and English authorities but ultimately apply misrepresentation principles (factual statement, falsity, inducement).
Cue Card 4: Comparing the Three Systems at a Glance
French Law
Subjective approach → Consent is vitiated if the essential reason for entering the contract was based on a mistake (and that mistake was “excusable” and not assumed as a risk).
English Law
Objective approach → Mistake is narrow; only fundamental mistaken assumptions can render a contract void.
Many disputes are actually resolved by misrepresentation or contractual terms (e.g., warranties).
Jersey Law
Uses French terms but typically English logic.
Courts often ask: Would a reasonable bystander say there was a contract? If yes, the contract stands.
Misrepresentation cases are analyzed similarly to English precedents.
Cue Card 5: Essential Definitions / Quick Memory Prompts
Erreur Obstacle: No real meeting of minds → contract never existed (nullité absolue).
Erreur Vice du Consentement: Defective consent → contract is voidable (nullité relative).
Common Mistake (English): Both parties share the same mistaken assumption about a fundamental fact → possible void contract, but the threshold is high.
Mutual Mistake (English): Parties talk at cross purposes; courts check what a reasonable person would have understood.
Unilateral Mistake (English): One party is mistaken, the other knows or should have known → can void the contract in certain narrow scenarios.
Misrepresentation: False statement of fact that induces a party to enter the contract → remedy is often rescission (and sometimes damages).
Assumption of Risk (Aléa): Under French law, if parties knowingly contract despite uncertainty, they cannot later claim erreur.
Cue Card 1: Context – Misrepresentation vs. Erreur in Jersey
Key Points
In many Jersey cases labeled as “erreur,” the courts have actually dealt with misrepresentation—statements that induce a party to enter into a contract but turn out to be untrue.
Under French law, dol (fraud) exists where one party intentionally causes or exploits the other’s mistake (erreur provoquée). By contrast, Jersey courts have often lumped both accidental and deliberate misstatements into the general heading of “misrepresentation.”
Jersey courts sometimes consider misrepresentation as a separate (stand-alone) doctrine, distinct from the vices de consentement in French law (erreur, dol, violence).
Cue Card 2: Modern Jersey Views on Misrepresentation
Key Points
Sutton v ICCI (Insurance Corporation of the Channel Islands)
The Deputy Bailiff suggested that an innocent misrepresentation could itself be considered a vice de consentement—just like erreur or dol.
Meaning: Even if there was no intentional fraud, the untrue statement that induced the contract might still invalidate consent.
Hong Kong Foods
The Commissioner went further, advocating that misrepresentation become a “stand-alone” principle:
A contract induced by misrepresentation is voidable, not automatically void.
This approach protects innocent third parties and allows the court to choose between rescission or damages.
These approaches reflect how Jersey law, in practice, has been heavily influenced by English law on misrepresentation.
Cue Card 3: The “English Law” Definition Adopted in Jersey
Key Points
Jersey courts often cite Cheshire & Fifoot’s definition:
“a statement of fact made by one party to the contract which, while not forming a term of the contract, is yet one of the reasons that induces the representee to enter into the contract. A misrepresentation is simply a representation that is untrue.”
From McIlroy v Hustler and Newman v Marks, three questions summarize misrepresentation in Jersey:
Were factual representations made?
Were those representations false?
Did they induce the entering into the contract?
Factual Statement vs. Opinion:
The statement must be about fact, not just an opinion or descriptive flourish. E.g., calling a space “owners’ accommodation” in an advertisement (Kwanza Hotels) might be too vague unless it implies a factual guarantee.
Cue Card 4: Inducement & Reliance
Key Points
The false representation must be a material factor in the decision to contract.
If the representee did not actually rely on the statement, misrepresentation won’t be proven.
Scarfe v Walton initially suggested that if the representee could have discovered the truth by due diligence, they had no claim. But Kwanza Hotels overruled this:
In Jersey now, failure to investigate does not bar a misrepresentation claim.
It is no defence to say the plaintiff could have found out the truth if they had checked carefully.
Cue Card 5: Remedies & Status of the Contract
Key Points
Void or Voidable?
Under the French-law approach, if the misrepresentation is classified as erreur or dol, courts often say the contract is void ab initio (never existed).
Some Jersey judges (Hong Kong Foods) prefer calling the contract voidable, not automatically void, so as to protect third parties and allow flexibility (e.g., awarding damages in lieu of rescission).
Damages for Misrepresentation
Jersey law does not strictly follow all English statutory rules (like the Misrepresentation Act 1967).
Yet, the courts have recognized that fraudulent or even innocent misrepresentation can lead to rescission and potentially damages, depending on the facts.
Cue Card 6: Overall Conclusions & Tensions
Key Points
There is an ongoing tension in Jersey law:
The courts say they adopt civil law categories (violence, dol, erreur), but they interpret them largely via English common law methods.
“Cherry-Picking” Problem:
Jersey decisions often pick bits of French law (labels like erreur) and bits of English law (objective misrepresentation tests), producing confusion about whether a contract is “void” or “voidable.”
Result:
A fluid but sometimes incoherent mixture.
Counsel often rely on English law arguments; older “French” authorities (Pothier, Domat) are cited but not consistently applied.
The courts have recognized that adopting dol vs. erreur vs. misrepresentation can lead to different remedies, and that some lines have become blurred.
