Mistake, Fraud and Duties to Inform in European Contract Law
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00585_1.x |
| Author | Hugh Collins |
REVIEWS
Ruth Sefton-Green (ed),Mistake, Fraud and Duties to Inform in European
Contract Law
,Cambridge: Cambridge University Press, 2005, xlv þ414pp, hb
d65.00.
This ¢fth bookof the ‘CommonCore of European Private Law’series follows the
pattern of selecting hypothetical fact situations and comparing the applicable
results in numerous European jurisdictions. Here the theme of the factual pro-
blems concerns information problems during the formation of the contract.The
twelve selected cases range from mistakes by the seller as to the value of the item
being sold to situations where arguably the stronger or better informed party to
the contract owed an obligation to provide the weaker party with information
about the transaction or the surrounding circumstances. Many of the examples
comprise the essential elements of old chestnuts, such as the sale of a painting to
an expert at gross undervalue as a result of the elderly and uninformed seller not
appreciating that it is the work of an old master. But the examples also include
more modern problems such as the purchase of shares shortly before their value
plummets and the giving of a personal guarantee to secure a bank loan paid to
anotherfamily member.The results fromthirteen jurisdictions are compared,¢rst
by describing the probable legal reasoningand result in each case, and then bythe
editor’s summaryof some comparative conclusions or themes.The thirteen juris-
dictions are Austria, Belgium, England, France, Germany, Greece, Ireland, Italy,
the Netherlands, Norway, Portugal, Scotland, and Spain. In addition, the book
contains two essays, one by Martin Josef Schermaier that describes the historical
evolution of the civil law tradition fromRoman timesto the present with respect
to the doctrine of mistake and duties to inform, the other by John Cartwright, a
historical introductionto the doctrine of mistake in English common law which
includes a helpful discussion of the most recent case law. The volume concludes
with a substantial and searching analysis of the results of the comparative project
by the ed itor.
The common core series employs the most productive comparative law meth-
odology. It avoids the broad and misleading generalities that bedevil comparative
law studies. Its results are always interesting, though hard to interpret. The central
issue is whether there is a common core at all, that is, whether in the light of the
general survey of European jurisdictions it is possible to discern some basic agree-
ment on the results and the appropriate reasoning, albeit that there will be some
deviations in particular jurisdictions.The choice of the topic of mistake and dis-
closure ofi nformation seems guaranteed to reveal the absence of a common core,
since this area ofcontract lawis notoriouslycomplex and controversial.The inves-
tigation reveals that the di¡erent jurisdictions employ di¡erent concepts of mis-
take, misrepresentation, and related duties, (including not having these concepts
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(2)MLR 278^298
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