Mistake in the contract law of Ukraine and some foreign countries

Abstract

The article analyzes mistake in the contract law of Ukraine, England and France. The author shows that the modern doctrines of contractual mistake were formed by Roman lawyers who provided that when entering into a contract, the parties may be mistaken about the subject matter of the contract, the price, the nature of the contract, or about the party to the contract, etc. It is substantiated that a mistake is a false assumption that led the mistaken party to enter into a contract. As a general rule, like all defects of consent, it must be made at the time of the contract. The complaining party must prove that if it had known about its mistake at the time of entering into the contract, it would not have entered into the contract or would have entered into it on completely different terms. Otherwise, such a party cannot claim that there was a defect in its consent. It is established that the current legislation of Ukraine prioritizes the doctrine of freedom of contract over all other doctrines, which in turn provides for the establishment of a legal relationship between the parties on the basis of a contract only if they subjectively and actually have such intentions. Ukraine adheres to the subjective theory, known to continental law countries, which provides that in case of defects of will, any transaction should be recognized as void. The author substantiates the signs of a transaction made under the influence of a mistake under Ukrainian law: 1) the internal will of such transactions is not sufficiently formed; 2) there is no influence on the person by other persons; 3) the mistake is material; 4) the mistake exists at the time of the transaction. The author explains that mistake in English law is characterized by a narrower scope of application compared to mistake in Ukrainian civil law, and therefore the circumstances under which a contract is void due to mistake under English common law are quite limited. In English law, a contract made in mistake can be enforced except for ambiguity based on the reasonable person standard, which must be rejected. This reflects the English law's perception of the objective theory, where the validity of the contract is always upheld, as the parties are obliged to comply with their expressed intentions. The author has shown that French private law adheres to the principle "ignorance of the law is no excuse", as evidenced by the fact that a mistake of law and fact cannot be forgiven. A mistake is grounds for void regardless of whether it relates to the performance of the contract by one party or the other. The party that made the mistake has effectively assumed the risk from the moment the contract is entered into, so it cannot claim damages. It is clarified that in almost all legal systems, a party cannot refuse to perform a contract if the mistake is the result of its own fault or negligence.