Comparison Of The Mistake System

Mistake system is an important system of civil law, because it usually gives the wrong side right to revoke the intention expressed or can even makes the contract null and void in some country's law, so all the country have prudent attitude to mistake system which is stipulated very carefully.Mistake system is a part of the flaw of the intention expressed in German civil law. Taiwan civil law followed the theory of German civil law,so their mistake systems are similar to each other. Mistake system adopts the model of dualism in German civil law, which divides the mistake into motivation mistake and behavior mistake. Behavior mistake means that actor's expression is inconsistent with his intention, and motivation mistake means actor's motive which is occurred before he making a decision is wrong. Actor can revoke his intention expressed for the reason of behavior mistake, but his motivation mistake has no effect on the efficiency of his intention expressed. German civil law's theory of mistake restricts the right to rescind strictly by the means of dividing mistake into motivation mistake and behavior mistake.Mistake system belongs to the field of contract law in common law. In the theory of common law, mistake is one of the reasons for making contract null and void. Mistake is divided into unilateral mistake and mutual mistake. The man who makes unilateral mistake should not be succored by courts. So there is a difference between the common law and the German civil law in limiting the application of mistake system.Chinese civil law mainly accepts theory of German civil law, but the mistake is not clearly defined by Chinese legislation. Scholars generally believe that serious misunderstanding system which is defined by section 59 in General Principles of the Civil Law and section 54 in Contract Law has played a same role as the mistake system in German civil law. Some scholars think that the aim of serious misunderstanding system is to balance the mutual interests in trade, so this system should be sustained. In theory, serious misunderstanding system couldn't play a same role as mistake system in German civil law according to the research of mistake system in German civil law. So mistake system in Chinese civil law should be reconstructed. In order to build the mistake system, we should choice a suitable legislative model. We could find that there are advantages and disadvantages in both of them by studying German civil law and common law. But the model of mistake system in German civil law is more adapted to the specific situation of our country. Because Chinese civil law mainly accepts the theory of German civil law, and there is no unresolved problem in mistake system in German civil law. I think we should build our mistake system carefully, which means we should choice the model of mistake system in German civil law.