Mistake Of The Intention And The Effect Of Juristic Act

The thesis does a preliminary research on the relationship of the mistake of the intention and the effect of juristic act. It is divided into four parts.The first part analyses the types of mistake. This part chooses the according civil rules of America and Germany as the foundation of deep analysis. The traditional division of mistake under the civil law of Germany has the close relationship with Savini`s viewpoint of mistake. Savini divided mistakes into two types, which are mistake of expression of intention and mistake of motive, and he took it as the standard to decide whether mistake should be protected or not. This viewpoint greatly affected the present rules and regulations of German civil law. Of course, this method is incomplete, and causes some theoretical puzzles, for example, the concrete type of computational errors, mistake of legal effect and so on. In the American law, operative mistake is subdivided into three concrete types, common mistake, mutual mistake and unilateral mistake. At the same time, this part proposes the possibility of theoretical innovation, and it introduces Melvin A. Eisenberg`s innovative viewpoints on the division of mistake. The aim is to open up the pondering channel of China's Theoretical Circles on the problem of mistake division. This analysis will help us to lay the foundation for further research.The second part is about the functional analysis of mistake. On the premise of understanding the types of mistake and their respective meanings, we can discuss the problem that how mistake affects the effect of juristic act. This part discusses the affecting problem from two aspects. One hand, the author analyses the premise of value about functional analysis that they are efficiency, morality and experience. On the other hand, the author analyses the specific function of each kind of mistake on the basis of the above premises of value. Deep analyzing and synthetic measuring the three premises of value make it clear that where, when and how the juristic act caused by mistake should have respective effect.The third part is about the analysis of the approved standard of mistake. Though functional analysis can give us some light to the effect of juristic act which is affected by mistake. Above all, it seems that the analysis is too abstract and macroscopic, and that it can hardly be clarified and standardized by the civil legislations. Thus we should further the research on, under which concrete condition, mistake should be the essential factor which affecting the effect of juristic act. These conditions are the importance of mistake, the identifiability of mistake, transaction risk and so on. By deep analysis and Synthetic judgment, we can find, when those concrete conditions change, the influence of mistake to the effect of juristic act will do.The fourth part is about the comparative analysis of the specific forms of the effect of juristic act under the theory of mistake. It is conditionally acknowledged that mistake will greatly affect the effect of the according juristic act whether in the countries of civil law system or of common law system. And there are differences between the concrete stipulates of these two legal systems, especially the specific forms of the effect of juristic act. There are two different rules about the effect of juristic act caused by mistake: one is that the juristic act is considered as void, and the other is revocable. It is believed under the common law system that the contract caused by mistake has slight defect, and there are different rules between Common Law and Equity. It has been held under the common law that the contract caused by mistake is void, but the rule of Equity is relatively elastic. Considering the concrete situation of mistake, Equity court will grant various rights to litigants, such as recession of contract terms, refusal of specific performance, rectification and so on. On the fully understanding the character of these different forms of the effect of juristic act, we should divide the respective fields where they should be applied.