Error, Deceit & Duress

on A Contract

Bünyamin Güler, Cem Yücesan & Sercan Sert

SRH Hochschule Berlin, December 08

Bünyamin Güler, Cem Yücesan & Sercan Sert, SRH Hochschule Be

 Agenda

• Error
• Deceit
• Duress
• Summary
 Error
• If the declaration of will suffers from certain defects then
it’s void or, at any rate, voidable.

• Declarations of will which are void are without effect

from the beginning.

• Voidable declarations of will are indeed valid, but they

can be invalidated by challenging their validity.
 Section 116
Mental Reservation

• “A declaration of intent is not void by virtue of the fact

that the person declaring has made a mental reservation
that he does not want the declaration made. The
declaration is void if it is to be made to another person
who knows of the reservation.”
 Section 118
Lack of Seriousness

• “A declaration of intent not seriously intended which is

made in the expectation that its lack of serious intention
will not be misunderstood is void.”
 Section 119
Voidability for Mistake
(Declaration Error)
• (1) A person who, when making a declaration of intent,
was mistaken about its contents or had no intention
whatsoever of making a declaration with this content,
may avoid the declaration if it is to be assumed that he
would not have made the declaration with knowledge of
the factual position and with a sensible understanding of
the case.

• (2) A mistake about such characteristics of a person or a

thing as are customarily regarded as essential is also
regarded as a mistake about the content of the
declaration.
 Mistake of Individualisation
• If he or she has confused the actual subject matter of the
transaction or the actual person with whom the person is
dealing with some other.
 Mistake of Expression
• If the person making the declaration mistakenly says,
writes or does something other than what he or she
actually intended.
 Section 120
Voidability for Incorrect Transmission
(Error in Communication)

• A declaration of intent that has been incorrectly

transmitted by the person or facilities used for its
transmission may be avoided subject to the same
condition as a declaration of intent made by mistake
may be avoided under section 119.
 Deceit
• The intentional expression of a false impression; a
misrepresentation of fact, a fraudulent, misrepresentation
by which one deceives another, who has no means of
detecting the fraud, to the injury and damage of the latter.

http://legal-dictionary.thefreedictionary.com/deceit
 Deceit
• The party injured must have no means of detecting the
fraud, for if he has such means, his ignorance will not
help him in that case and becomes the willing fool of the
others cunning and ‘volenti non fit injuria‘ (to a willing
person, no injury is done).

http://legal-dictionary.thefreedictionary.com/deceit
 Section 123
Voidability on the Grounds
of Deceit or Duress
• (1) A person who has been induced to make a declaration
of intent by deceit or unlawfully by duress may avoid his
declaration.

• (2) If a third party committed this deceit, a declaration

that had to be made to another may be avoided only if
the latter knew of the deceit or ought to have known it. If
a person other than the person to whom the declaration
was to be made acquired a right as a direct result of the
declaration, the declaration made to him may be avoided
if he knew or ought to have known of the deceit.
 Duress
• Compulsion by threat or force; coercion;
constraint.

• Such constraint or forcing renders void a

contract or any other document performed
under its influence.

• Main Types:
Physical Duress
Economic Duress

http://dictionary.reference.com/browse/DURESS
 Physical Duress
• To The Person:
consists of actual or threatened violence to one
contracting party, or their family, by or on behalf of the
other contracting party

• To Goods:
threats concerning goods; one party refuses to release
the goods belonging to the other party until the other
party enters into a contract with them
 Economic Duress
• Unlawful use of economic pressure; threats
against the free will of an individual by forcing
and leaving him or her no choice but to accept
an agreement and such.
 Summary
• Person signing a contract should have legal
capacity to give consent; should be able to
exercise free power of choice, without the
intervention of any element of force, fraud,
deceit, duress, over-reaching, or other ulterior
form of constraint or coercion; and should
have sufficient knowledge and comprehension
of the elements of the subject matter involved
as to enable him to make an understanding and
enlightened decision.
 Sources
• An Introduction to German Law by Gerhard Robbers

• http://legal-dictionary.thefreedictionary.com/deceit

• http://dictionary.reference.com/browse/DURESS
Thank you for your attention...

Bünyamin Güler
Cem Yücesan
Sercan Sert