유럽契約法原則上의 錯誤의 示唆點

Abstract

The principle of freedom of contract suggests that a party should be bound only when its consent to the contract was informed and free from constraint by the other party. While freedom of contract is an important value, it must be balanced against the need for security of transactions. The other party should in general terms be able to rely on the existence of the contract unless it has not acted in good faith or has taken deliberate advantage of the first party in circumstances in which standards of fair dealing would not permit this or has behaved carelessly or in some other way which was unreasonable. Another way of putting the point is in terms of risk. When making a contract, each party undertakes certain risks. Under the Principles of European Contract Law, a party which has entered a contract for a mistake as to the facts or law may avoid the contract, but only if it is shown in the light of a correct interpretation of the contract that the mistake was very serious and that the mistake was caused by information given by the other party, or that the other party knew or ought to have known of the mistake and it was contrary to good faith and fair dealing to leave the mistaken party in error, or the other party made the same mistake. Avoidance is not permitted if the mistake was inexcusable or if the mistaken party had assumed the relevant risk. Mistakes and misunderstandings over the terms of the contract due to errors in communication should also first be approached under the rules of interpretation. These may lead to one party’s version of the terms being accepted as correct. If these rules do not resolve the matter, a mistaken party may avoid the contract subject to the same conditions as for mistakes as to fact or law. The normal remedy for mistake is for the party which is mistaken, or the one which wishes to escape from a contract entered under a shared mistake, to avoid the contract as a whole or in part. The mistaken party may also recover damages where the mistake was the result of incorrect information given by the other party, or where the mistake was or should have been known to the other party, or was caused by it. The contract may not be avoided if the other party is prepared to perform it in the way the first party understood it or, in cases of shared mistake, if the court can adapt it to bring it into line with what had been understood.