Error as a defect in a declaration of intent

17 November 2023 | Knowledge, News, The Right Focus

The Civil Code provides for a number of situations in which a defective declaration of intent is invalid or its effects can be avoided. These include ignorance or lack of freedom when making the declaration of intent, the ostensible nature of the declaration or a situation in which the declaration was made as a result of an error, deception or threat.

The conditions for the occurrence of a specific defect are strictly defined in the regulations and, depending on them, the declaration of intent will either be invalid or the person making the declaration of intent will be able to avoid its effects. Below is a brief analysis of the reasons why a declaration of intent may be considered to have been made in error.

No legal definition of error

The law does not provide a legal definition of error, but refers to the colloquial understanding of the word. An error as a defect in a declaration of intent consists in a misconception or lack of understanding on the part of the person making the declaration of intent, whether as to the content of the declaration of intent made or as to the actual state of affairs.

An error therefore means a discrepancy between reality and its reflection in the mind of the person making the declaration of intent.

For an error to be considered a defect in a declaration of intent, two conditions must be met: the error must be material and it must relate to the content of the transaction.

The right to avoid a declaration of intent does not apply to every type of error, but only to subjectively and objectively material errors.

Subjective and objective assessment of the materiality of errors

The subjective materiality of an error is assessed by considering how material the provision to which the error relates is to the person making the declaration (in most cases, an error relating to the characteristics of the subject matter of the performance will be material). The objective assessment of materiality boils down to a consideration of whether, in the same circumstances, a reasonable person would have made a declaration of intent with the same content if they had not acted under the influence of the error.

It is irrelevant whether the error relates to facts preceding or accompanying the transaction or to its effects. The misconception of the person making the declaration of intent may therefore relate to any element of the transaction. It may be an error as to the facts or an error as to the law. In order for the error to have legal significance, the person making the declaration of intent must be under its influence at the time of making the declaration.

It is important to note that an error may not be invoked if the person making the declaration of intent did so in a reckless manner, i.e. did not exercise due diligence in examining the factual circumstances, e.g. did not read the contents of the documents to be signed.

Declarations to third parties

The rule providing for the possibility of avoiding a declaration of intent made under the influence of an error is, however, subject to limitations in a situation where the declaration of intent was made to another person. In such a case, its legal effects can only be avoided if the error was caused by that person (even if it was not their fault), or if that person was aware of the error or could easily have noticed it.

It should be noted that if a declaration of intent is made to a third party, the avoidance must be made in writing. It is also important to observe the statutory time limit, i.e. one year after the discovery of the error at the latest.

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Adam Czarnota

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Adam Czarnota

Adam Czarnota

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