Abstract
Abstract This chapter discusses invalidity of contract in cases of defective consent under Vietnamese law. To deal with such issues, rules on mistake, fraud, and threat are laid down in all three generations of the Vietnamese Civil Code (VCC) to grant protected parties the right to avoid a contract that does not truly reflect their intention. Nevertheless, as the new 2015 VCC is designed as an instrument to facilitate the market economy, it must also take into account the importance of ensuring legal certainty, as enshrined by the principle of pacta sunt servanda. Arguably, the 2015 VCC has failed to provide a sensible balance between the two conflicting aims: that of realizing the true intentions of the parties and that of protecting the reliance of the non-mistaken party on the contract. On the one hand, unidirectional concerns about protecting one party from defects of consent have steered the drafters of the 2015 VCC to make rules that, especially in the case of mistakes, go beyond the acceptable balance, thereby creating the risk of a flood of litigants seeking to avoid agreed contracts. On the other hand, a strict adherence to the traditional doctrines of defects of consent including mistake, fraud, and threat has made the Vietnamese legislator miss a golden opportunity to integrate the modern doctrine of unfair exploitation into the 2015 VCC.
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