Research Into Mistake Of Intention

There is a systemic research on the mistake of the intention, trying to establish the rules of our own by researching and using other countries'correspondence for reference. Five chapters are included. The first chapter summarizes the mistake of intention, making a definition. And then, it discusses the value of mistake of intention in our own civil law system. First, different definitions of common law system and civil law system are analyzed, meaning the difference of the two systems on the mistake. The extension in common law system is very distinct from that in civil law, the former one including the fraud and misunderstanding in the latter one. The author deems that the mistake of intention is the disagreement of objective ideas and meaning facts due to the offeror oneself and the disagreement is unknown by the offeror. Second, it discusses the value in our civil law system. Our civil law system didn't regulate the mistake of intention, the correspondent judicial explanation also has easy rules on the principal misunderstanding. According to the civil law system, intention consists of intent and action. And when the action is not consistent to the intent, the flaw emerges, which means the disagreement and the unfreedom. And the mistake is one of the disagreement, which will affect the result of the legal act and the commercial exchange. The second chapter, based on the first, introduces the types in civil law system and common law system. In section I it discusses the mistake in the civil law system. Civil law system absorbs the effects of German law, so has precise thoughts and theory and make the types on the basis of steps of intention's formation. It divides the mistake into the motivation mistake in the formation of intent, the content mistake in the completeness of intent, the action mistake in the intent out sighting. First, motivation mistake emerges in the formation of intent, meaning that the mistake in the mistake easy-going stage. The mere motivation mistake has no effect on the legal results. But the exception is that, if the motivation is expressed outside by the offeror and understood by the other one, it is possible to be looked on as a mistake of content, so it can be seen as the same with the content mistake to have legal ends. That means the offeror can withdraw the offer to make the contract invalid. On the other hand, the mistake of character and mistake of identity also produce the question of whether be made no effect on the intention or be made invalid through executing the withdrawal right if they involve the content of the intention. And if the two mistakes have impacts on the principal character of person and object, it may be seen as the mistake on content and be withdrawed; otherwise, it may be treated as motivation mistake and have the actual results. Second, the mistake of content means that offeror has mistake on the force bound or meaning, which implies the flaw of the purpose meaning. According to the purpose, the meaning and conventional exchange, the mistake of content is ordinarily deemed to include the followings: 1, about the type and character of legal action. For example, one mistakes the lending as rendering and responds to the other; 2, about the mistake of identity; 3,about the mistake of party; 4,about the mistake of price, quantity, etc. The price, quantity and etc. must be the necessary elements of legal action and meantime they must be thought as very important to be withdrawed by one party. The mistake of content, which can be withdrawed, must be judged principal in the exchange. Ordinarily, it must be principal on the objective and subjective face. Objective one is judged on the general level of person, which means if a natural person in the position has known the circumstance, he will not mean that; subjective one is judged by the offeror himself. The other important mistake of content is mistake of legal results, which he has mistake on thelegal condition. If the mistake is the intent of proposing intention, that means it is only a motivation, then it is just a motivation mistake. If the parties are not willing to comply legal results with law, the content must be included in the contract. Third, action mistake means that "the offeror will not do that if he has known". The offeror did something but he didn't know the legal pacts and the action didn't comply with his own real ideas, that is he didn't have any legal sense about the meaning method. Express mistake and communication mistake are included in this type. The former means that although the two parties make the proper action and don't disguise anything and no disagreement, the mistake is produced by choosing the mistaken method by offeror. Express mistake authorizes the offeror the right to withdraw, but the offeror must provide enough testimonies to attest himself that only mistake exists in the method of expressing and have no effect on the other contract provisions. The latter mistake means that the offeror and the acceptor choose another way to exchange the intention and make a mistake. The risk of the mistake should be undertaken by the offeror so the offeror has no right to withdraw it just because he chooses the communication person or other entity. So the communication mistake should meet several requests under: first, the offeror has assigned the transmitter or other to communicate the intention; second, the mistaken communication is incurred no matter what the offeror on purpose or negligence, no matter what other act of god and no matter what the mistaken communication is caused by, regardless of the conscious elements; third, the relative party has no sense about the mistake and unknown about it. In section II, it discusses the mistake in the common law system. The common law system has different ideas about the mistake, but in general they divide them into mutual mistake and unilateral mistake. The mutual mistake means the two are not agreeable totally, but they all mistakenly estimate the facts of contract true, which means they produce the same mistake about the facts outside the contract. There are three ways to treat this question in Americanlaw: 1,old rules, whether mutual mistake consists of the defense of contract establishment or taking effect depends on that it involves the substantial or material of the principal matters of contract or not. 2, modern rules, if the two parties make a contract based on mutual mistake and the mistake is about the substantial verdiction and the verdiction has material effect in exchange, the injured one doesn't undertake the risk of mistake, the injured one has right to make the contract invalid. 3,exception rule. Under this rule, the injured one can't allege the contract invalid, which means he undertakes the risk of be doubtful about the basic matters of the contract. In addition, if the mistake is about a sort of prescription or judgment or based on this, the contract can't be made invalid. The unilateral mistake is the mistake of knowable or should be knowable by one party, and this is named palpable unilateral mistake. The third chapter is about the legal force of mistake of intention. There are two forces: invalidism and repealism. In section I, it talks about invalidity of the legal action. In Japan, France adapt the invalidism. In section II it talks about the withdrawal of the legal action. Many nations prefer the repealism. But they all make limitations about it, mainly manifest the following: 1, the limitation on the time; 2, the respondent has no facts of knowing or should having known; 3, the offeror has no negligence. If the execution of the withdrawal makes loss of the other, for example the parties'expenses for preparation of the contract or some other expenses for the execution, the offeror should give the detriment to the other when he claims the invalidity of the contract. The offeror withdraws the intention due to the mistake but can't disobey the obligations the law requires to do. The fourth chapter is about the relevant theoretical problems with mistake. It demonstrates the mistake and great misunderstanding, the mistake and legal unfairness, the mistake and hitting when down, the mistake and fraud, the mistake and business risk, the mistake and proficiency of valid element. The fifth chapter is about the implication of mistake to our civil law...