Error of fact as a vice of consent : a comparative analysis

Abstract

Error of Fact is one of the most fundamental and common reason why contracts are considered to be null and void. An error of fact is made up of an error in negotio, error in corpore or error in substantia. This is unlike an error of law, in which the error is on a provision of the law. The first section of this Term Paper deals with Roman law as the foundation of contracts, how the Napoleonic Code as the French Civil Code have influenced many European countries, including Italian law and Maltese law. The following section deals with Italian law, how error was tackled under the 1865 Italian Civil Code, and how it differs under the 1942 Italian Civil Code. Whilst the last section deals with Maltese law, how error is defined exactly the same as in the Napoleon Code and the 1865 Italian Civil Code. Under Maltese law, it has also been established a criteria, which must be satisfied for an error in substantia to be successfully pleaded. The distinction between an error of fact and an error of law is clearly identified under Roman law, the 1865 Italian Civil Code and the Maltese Civil Code. However, the same cannot be said, for the 1942 Italian Civil Code, since no such distinction is drawn between the two. This is because error is tackled as one innovative title, which must be essential and recognisable by the other party. This entails how different jurisdictions, have adopted different approaches and identified different criteria’s which constitute an error of fact, yet the underlining principles remain the same.