The Reconsitution Of Mistake System

The mistake system in civil law has been much disputed in its definition. From the age of two great scholars, Savigny and Jhering. There are so many theories try to convince the other, but none have succeed. Therefore, the legislation in those contries varied from one to another, also in their value orientation and legal principles. The delicate classification based on declaration of will in German law, the argument of monism and dualism in Japanese law, the three typical cases in common law, and the integration of two legal systems in EU law. This article will not elaborate on the detail of those theories, but focus on criticism and introspection.The first paragraph tries to divid those theories into three categories:the mistake based on intentionalism; the mistake based on trust principle; the mistake based on case analysis, and then discuss on a one by one basis. The existing legislation have few relevant provisions, as well as legal precedent and judicial interpretation. While the majority opinion in academia prefers the classification theory in German law, but no one has ever questioned about it’s justification. Is it possible to put ever-changing events in life into several categories without controversy? Is it justified to make some of them access to remedies and some not? Whether motivation mistake or reliance of the counterpart, they are just part of referenced factors, not all.The second paragraph combines those theories with the legislative practice of our country, and use Bewegliches System from Wilburg, Law of Competing Principles from Alexy to restructure the mistake system. Set the imputability of mistake side to A, and set the imputability of counterpart to B. In unilateral mistake, if A is bigger than B, than it’s more reasonable to relief the mistake side. In mutual mistake, make two evaluations about whether it’s justified to make one access to remedies as the mistake side. This is the core concept of reconsitution in this article.The specific factors based on several theories and legislation:(Al) If the mistake will restrict the purpose of the contract; (A2) The subjective fault of the mistake side; (A3) If the mistake will affect contractual fairness; (A4) If the risk of mistake should be borne by one party; (B1) If the mistake is caused by the counterpart; (B2) If the counterpart know the existence of mistake. Then the imputability of mistake side "A" can be added by these four factors and the imputability of counterpart "B" can be added by those two factors. A-n1·A1+n2·A2+n3·A3+n4·A4; B= ml B1+ m2·B2, and the value of n and m can be dynamically changed depend on exact circumstances. Use Law of Competing Principles by Alexy when A and B have similar value to compare the principles behind the value orientation of two sides. Then come to the conclusion:when imputability of two sides are quite similar, anti-intentionalism should be the prioritizing principle, but can have exceptions depend on exact circumstances.