The notion of excusability in error as a vice of consent

Abstract

In our Civil Code consent is described as one of the most essential requisites necessary for contract formation. In fact Savigny holds that the ‘will itself must be treated as the only real and effective consideration’. Moreover, a person’s declaration of will can only produce the intended legal effects when the consent is informed by a cause or reason and is free from any interfering circumstances which tend to frustrate its intention. As early as the Code Napoleon, consent is invalid when it is given by error, extorted by duress or obtained by fraud due to the fact that in such scenario the consent given is defective, impaired as well as tainted by a vice which merely affects the person’s freedom. The objective of this work aims to take a qualitative approach by examining the different kinds of error which could vitiate consent in contract law, in order to discover how and when certain types of error are deemed to be excusable and what remedies are available. Normally excusability is defined as something which could not be detected by the use of reasonable care. It is worth investigating because the notion of excusability in Malta seems to have been largely left to the interpretation of our courts as is evident in Articles 974 to 976 of the Maltese Civil Code, Chapter 16 of the Laws of Malta which do not mention excusability per se.