Contractual Obligations – Prof. Helge Dedek Introduction 1

Vitiation of Consent

Mistake leads to void contracts in the CML, error in CVL is relatively null

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  Two categories for our purposes: misunderstanding and common error/mistake
  

Vitiated consent is tied up with public policy (i.e. unconscionability). In German surety cases, arguments can fall under public policy or flawed formation (vitiated consent). It is up to the judges to characterize an issue.

In the CVL the following vitiates consent

Consent without Capacity 1398, 1409

Consent that is not Free and Enlightened will (1319)

Error (1400)

Dol (Fraud) (1401)

Fear (1402)

Lesion (1405)

1407, 1408

Identify the different types of “vices du consentement”

Identify the remedy (or remedies) that is sought by the person invoking a defect of consent

Does the Civil Code focus on fairness in process, or fairness in outcome?

“Capable of binding himself”, 1398, 1409

Capacity means that a minor cannot bind himself, must be mentally able (Thibodeau)

Article 1398 Consent may be given only by a person who, at the time of manifesting such consent, either expressly or tacitly, is capable of binding himself.

Article 1409 The rules relating to the capacity to contract are laid down principally in the Book on Persons.

“Free” and “Enlightened” (1399)

2. Error (1400)

3. Dol / Fraud (1401)

4. Fear (1402)

The CML equivalent is duress – paradigm of coercion that “vitiates consent”