Учебный год 22-23 / Mistake, Fraud and Duties to Inform in European Contract Law (The Common Core of European Private Law)

recognise the presence of a defect and could have drawn the purchaser’s attention to it.31 The decisions in the well-known cases concerning the leasing and sale of wine vessels probably convey the same concept: if a person had leased or sold leaky wine vessels, then he was always liable for the loss which arose to the purchaser or the lessee. Therefore even if he had not been aware of the defect he would still be bound -- besides termination of contract or reduction of the purchase price -- to compensate the purchaser or lessee for the loss arising from the leakage.32 This did not stipulate any special ‘liability under warranty’ but rather took the vendor’s typified breach of the duty of care into account. Perhaps it was normal practice for the vendor to ensure that the vessels were properly sealed beforehand.33

Duties to inform in the modern sense therefore only existed in Roman law where it was apparent that silence amounted to a breach of bona fides. Only in the field of warranty law did one proceed on the basis of a typified definition of liability which approached fraud.

Reception and common law (1200--1800)

The concept and theory of the Roman law on mistake and warranty underwent little change in legal science of the middle ages and the early stages of the modern era. One change, however, concerned the arguments both for the invalidity of a contract tainted by mistake and for granting remedies in the case of poor performance. The law on mistake together with the law on defective declarations of intent fell under the regime of the scholastic doctrine of will and the law on warranties was now judged under the aspect of fair exchange (iustitia commutativa).34 Moreover the concept was developed, from some rudiments in

31In this sense also Zimmermann, Law of Obligations, pp. 366 et seq.

32Pomp. D. 19,1,6,4; Ulp. D. 19,2,19,1.

33Nevertheless, dolia were vessels made of clay, which were inserted into the ground for use; at least in the leasing of such vessels testing their water-tightness was a laborious process for the lessor and was therefore not expected. For different explanations see:

T. Mayer-Maly, Locatio conductio (Vienna, 1956); M. Kaser, ‘Die natürlichen Eigentumserwerbsarten im altrömischen Recht’ (1957) 74 ZSSt 166; Honsell, Quod interest im bonae fidei iudicium, p. 134; K. Luig, ‘Zur Vorgeschichte der verschuldensunabhängigen Haftung des Vermieters für anfängliche Mängel nach § 538 BGB’ in G. Baumgärtel (Hrsg.), Festschrift für Heinz Hübner zum 70 Geburtstag (Berlin, 1984), p. 129, p. 132.

34On this see mainly: J. Gordley, The Philosophical Origins of Modern Contract Doctrine

(Oxford, 1991), pp. 30 et seq.

Roman law, that exploiting an individual’s position of necessity with the aim of gaining profit was reprehensible and that transactions of this kind were accordingly void. Typical characteristics of this new social ethic could be found, for example, in spiritual and temporal limits on interest rates35 or the theory of fair price developed from the iustitia commutativa.36

Mistake

It was probably the law of mistake which experienced the most fundamental innovation since its creation. Medieval jurists no longer perceived in the mistake of one or both parties solely a problem of consensus -- as did the Roman sources -- but, following the Aristotelianscholastic doctrine of imputation, a problem of autonomous intention.37 A mistake causes an erroneous perception and impairs the formation of intent; an act which is made on this basis and directed by intention is thus not attributable to its author.38 Admittedly, offer and acceptance in the creation of a contract and other legal transactions are first grasped conceptually in the eighteenth century as actus iuridicus,39 but the concept that only the intention of the parties formed without impairment may produce the contractual consensus may already be perceived in early doctrinal forms developed by medieval jurists. Thus, one begins to grasp different guises of ‘mistake’ relating to factual circumstances

35For an analysis of this see: H. Siems, Handel und Wucher im Spiegel frühmittelalterlicher Rechtsquellen (Hannover, 1992), pp. 551 et seq. and pp. 591 et seq.; M. Giacchero,

L’attegiamento di concili in materia d’usura dal IV al IX secolo (Perugia, 1981), pp. 305 et seq.

36See for example: J. W. Baldwin, The Medieval Theories of the Just Price. Romanists, Canonists and Theologians in the Twelfth and Thirteenth Centuries (1959); K. S. Cahn, ‘The Roman and Frankish Roots of the Just Price of Medieval Canon Law’ in (1969) 6 Studies in Medieval and Renaissance History, pp. 6 et seq.; R. de Roover, La pensée économique des Scolastiques. Doctrines et méthodes (Paris, 1971); Gordley, Philosophical Origins, pp. 65 et seq.; further comment in: Zimmermann, Law of Obligations, pp. 259 et seq. and C. Becker, Die Lehre von der laesio enormis in der Sicht der heutigen Wucherproblematik: Ausgewogenheit als Vertragsinhalt und § 138 BGB (Cologne/Berlin/Bonn/Munich, 1993), pp. 27 et seq. and Siems, Handel und Wucher, pp. 764 et seq.

37On the distinction see recently: M. Schermaier, ‘Europäische Geistesgeschichte am Beispiel des Irrtumsrechts’ (1998) ZEuP 60, pp. 68 et seq.; for further comment see: A. Dihle, The Theory of Will in Classical Antiquity (Berkeley/Los Angeles/London, 1982),

pp. 54 et seq.

38Especially Aristot. Eth. Nic. III, 1109 b 30 ff.

39By C. Wolff and in the Wolff-school, probably first in: D. Nettelbladt, Systema elementare universae iurisprudentiae naturalis, Halae Magdeburgicae; pars I: Introductio in iurisprudentiam naturalem (1757), §§ 256 et seq.

contract. Accordingly, if someone makes a mistake relating to the essentia matrimonii, then the conclusion of the marriage contract is invalid if the mistaken party would not have concluded the marriage had he not made the mistake. Even contemporary jurists had already made a distinction as to whether a mistake affected the substantia of a contract or not.47 Yet, in contrast to those who drew upon objective, formal criteria with which to determine the substantia contractus (price, goods, type of contract), Thomas measured the ‘nature’ of marriage or indeed contracts in general according to the meaning and purpose of the contract. The principle error qualitatis in personam redundans48 was developed according to this and is still to be found in the Codex Iuris Canonici.49

In Roman common law this concept is initially taken up either tentatively or not at all. As the first, Franciscus Connanus (1508--51), a French jurist of the school of Bourges believed that the assessment of a mistake depended not on the substantia rei, i.e. the significance of the facts about which one had been mistaken, but rather on the substantia contractus, i.e. the nature of the contract which one intended to conclude.50 However, he initially remained alone in this view.

Despite being partly influenced by innovations of natural law,51 the doctrine of Roman common law -- whether in the elegantia iuris, in the Usus modernus or in the late Mos italicus -- could not free itself from the Roman categories of mistake. Jurists discussed the cases known from the sources up to the nineteenth century and only simplified the casuistry (as it was customary to do since the middle ages) by distinguishing cases where the mistake had affected the substantialia or merely the accessoria of the contract. Accordingly, discussion shifted to the question concerning which elements of the contract belonged to the categories of

47For example, Rogerius, Summa Codicis, ad C. 2,3, nn. 18 ff. (edition: Scripta Anecdota Glossatorum, vol. 1 (Bologna, 1913)); Placentinus, Summa Institutionum sive Elementorum D. Iustiniani, ad C. 2,3 (p. 43 of the edition: Moguntiae, 1535); Azo, Summa Codicis, ad. C. 4,38,3 and ad C. 4,54, n. 1 (edition: Papiae, 1506). Comprehensively on this see Gordley, Philosophical Origins, pp. 61 et seq.

48Thomas, STh. suppl III, qu. 51, art. 2, ad 5.

49CIC 1983, Can. 1097, § 2: Error in qualitate personae, etsi det causam contractui, matrimonium irritum non reddit, nisi haec qualitas directe et principaliter intendatur.

50F. Connanus, Commentaria iuris civilis (Basiliae, 1562), lib. VII, cap. VI, n. 4 (704 C of the edition).

51On this below at pp. 55--60, many authors of the late seventeenth and eighteenth centuries can in fact only be attributed to one of the two main movements with some difficulty. This applies for example to: W. A. Lauterbach, Heinrich and Samuel Cocceji or Jean Domat.

50 m i s t a k e , f r a u d a n d d u t i e s t o i n f o r m

substantialia or accidentalia.52 Even the tendency to treat problems relating to the law on defective performance -- for example, cases of initial impossibility, cases of defective delivery -- as problems of contractual mistake continued in later common law. In the Dutch and German Usus modernus this tendency was even exaggerated in that the mistaken party was granted a claim in damages against the party who was not mistaken: the Roman jurists oblige the vendor who had known of the defect in the goods sold to compensate the loss to the purchaser’s property resulting from the defect. Because the purchaser was regarded as the ‘party under a mistake’ and the seller as the ‘party not under a mistake’, the rule was accordingly developed that the mistaken party could bring a claim in damages against the party who was not mistaken.53 This duty of compensation does not have anything to do with modern liability for negligent misrepresentation,54 rather, it resulted from an amalgamation of the laws on defective performance and mistake.

Declaration of intent and mistake in declaration

From a present-day perspective, the curious rule granting the mistaken party a claim of damages against the non-mistaken party may be traced back to two flaws in the Roman-common law doctrine of mistake: first, one did not consider that such a claim could only exist if the nonmistaken party was bound to point out that mistake which the other party was making. Second -- and herein lies the fundamental problem of the doctrine of mistake until the nineteenth century -- one did not distinguish between cases of mistake and cases of breach of contractual obligations. If the vendor supplied the purchaser with goods worse than the latter had expected, one may wonder whether the vendor had fulfilled his contractual obligation at all or whether the purchaser had made incorrect assumptions as to the object of sale. In the first case,

52Cf. for example: B. Altimarus, Tractatus de nullitatibus contractuum, tom. 3 (Colonia, 1720), rubr. I, qu. IX pr., n. 19 ff.; J. Hoppius, Commentatio succinata ad Institutiones Justinianeas (Francofurti ad M. 1698), lib. III, cap. XXIV, § 2; G. Noodt, Commentarius in D. Justiniani sacr. princ. libros XXVII Digestorum seu Pandectarum (Lugduni Batavorum, 1724), ad D. 18,1 (pp. 386 et seq. of the edition); F. G. Struve, Dissertatio inauguralis juridica de effectu erroris in contractu empti venditi, resp. J. A. Hankoph (Kiloni, 1749), thes. pp. 13 ff. Even J. Domat, W. A. Lauterbach and S. Pufendorf use this distinction.

53G. Frantzkius, Commentarius in XXI libros Pandectarum (Argentorati, 1644), ad D. 18,1, at pp. 52 et seq.; H. Zoesius, Commentaria ad Digestorum seu Pandectarum juris civilis libros L. (Coloniae Agrippinae, 1736), ad D. 18,1, n. 9; H. Hahn, Observata theoretico-practica, ad M. Wesenbecii in: L. libros Digestorum Commentaria (Helmstadii, 1659), vol. I, ad D. 18,1, n. 6.

54For an overview -- for example, of the legal situation in Austria, Italy, France and England -- see Kramer, Der Irrtum beim Vertragsabschluß, pp. 134 et seq.

the purchaser may demand termination or reduction of the purchase price and, under certain further conditions, claim damages on the basis of non-performance. In the second case, he may claim the contract is invalid and refuse to pay the purchase price. This alternative exists in almost all Roman texts which were adopted in the middle ages in relation to the law on mistake: for example, the case of the purchaser, who, instead of the gold bracelet he expected, only received one of gold-plated bronze.55 Is he to demand the delivery of a gold bracelet from the vendor or is the contract to be invalid owing to the mistake relating to the substance of the bracelet?

This question can only be decided by examining whether a validly concluded contract for a gold bracelet had actually been made. If -- as with the Roman jurists -- the conclusion of the contract depended on the internal consensus of intention,56 then every significant mistake would have to be capable of frustrating the conclusion of the contract (cum non consentiant qui errent).57 Only in the case of formal promises (stipulationes) or wills was it usual to deduce the true intention from the intention expressed (either orally or in writing).58 In the doctrines of Canon and Roman common law, one laid greater store by the objective significance of declarations. Owing to the idea that interni actus per se spectabilis non sunt,59 the medieval law on evidence already examined how internal processes -- such as the dolus of one party -- or the correctness of a fact supported by oath became believable by external signs. At the end of the

55Ulp. D. 18,1,14; most recently on this, Schermaier, Materia, pp. 121 et seq. with further comment.

56Pap. D. 50,16,219: ‘In conventionibus contrahentium voluntatem potius quam verba spectari placuit.’

57Cf. Ulp. D. 2,1,15; on this rule A. Wacke, ‘Errantis nulla voluntas. Grenzen der Konludenz stillschweigender Willenserklärungen’ (1994) 22 Index, pp. 267 et seq. On the intersection of error and consent Apathy, ‘Sachgerechtigkeit und Systemdenken’,

pp.95 et seq. and Schermaier, ‘Auslegung und Konsensbestimmung’, pp. 235 et seq.

58On the dichotomy of verba and voluntas, cf. for example: G. Gandolfi, Studi sull’interpretazione degli atti negoziale in diritto romano (Milan, 1966), pp. 288 et seq.; R. Astolfi, Studi sull’oggetto dei legati in diritto romano (2 vols., Palermo, 1969), vol. II, pp. 163 et seq.; M. Kaser, Römisches Privatrecht, 1st section: Das altrömische, das vorklassische und klassische Recht (2nd edn, Munich, 1971), pp. 234 et seq.; P. Pescani, ‘Potentior est quam vox mens dicentis’ (1971) 22 Iura, pp. 121 et seq.; B. Albanese, ‘Vox e mens dicentis’ (1973) 34 Ann. Palermo, pp. 79 et seq.; P. Cerami, ‘Verba e voluntas in Celso figlio’ in Studi in onore di A. Arena I (Palermo, 1981), pp. 477 et seq.; Zimmermann, Law of Obligations, pp. 622 et seq.

59Hugo Grotius, De iure belli ac pacis (Traiecti ad Rhenum, 1773), lib. II, cap. XVI, § I 1. For more detail on the following see: Schermaier, Die Bestimmung des wesentlichen Irrtums,

pp.173 et seq.

sixteenth century, it had become generally accepted that where divergences over the content of a contract occur, the most important forms of evidence for deducing the intention of the parties were the words and signs exchanged: ‘in pacto verba ad aliud non requiritur, praeterquam ad probandum voluntatem contrahentium’.60 A doctrine of interpretation in the modern sense was unknown; jurists certainly developed a canon of interpretative rules61 according to the Roman example, but the contents of a declaration of intent did not depend on its objective meaning. Although the words were regarded as the door to the intention of the speaker, the speaker’s will was not judged according to the objective meaning of its declaration but the declaration gave evidence of what the speaker claimed to have intended.

Only natural law in the seventeenth and eighteenth centuries placed the objective meaning of a declaration at the centre of interpretation. The content of a declaration is determined according to how an averagely informed and prudent recipient of a declaration would understand it. Grotius had already demanded an interpretation which was oriented around the usual meaning of the words.62 Due primarily to Pufendorf 63 this concept becomes established on the basis of Hobbes’ social contract

60Andrea ab Exea, ‘Tractatus de pactis’ in Trias receptarum praelectionum et discussionum de pactis (edition: Basiliae, 1624), at p. 24. The distrust of the meaning of words exchanged is especially noticeable in this statement. The reasons for this are probably the narrowly interpreted Roman sources that only require consensus in intention of the parties for the validity of a consensual contract (or a pactum); cf. for example, Ulp.

D.2,14,1,2 f.; I. 3,22,1.

61The most well-known is perhaps the rule: in dubio contra proferentem/creditorem; on the history of this rule cf. C. Krampe, ‘Die ambiguitas-Regel: Interpretatio contra stipulatorem, venditorem, locatorem’ (1983) 100 ZSSt, pp. 185 et seq.; C. Krampe, Die Unklarheitenregel (Berlin, 1983), pp. 14 et seq.; Zimmermann, Law of Obligations, pp. 639 et seq.; generally also: H. Coing, Europäisches Privatrecht (Munich, 1985), vol. 1: Älteres Gemeines Recht (1500--1800), pp. 410 et seq.

62Grotius, De jure belli ac pacis, lib. II, cap. XVI, § 1 and lib. II, cap. IV, § III. On this, for example: M. Diesselhorst, Des Hugo Grotius Lehre vom Versprechen (Cologne, 1959), pp. 55 et seq.; H. Hübner, ‘Subjektivismus in der Entwicklung des Privatrechts’ in D. Medicus and H. H. Seiler (eds.), Festschrift für Max Kaser zum 70 Geburtstag (Munich, 1976), pp. 720 et seq.; K. Luig, ‘Franz Zeiller und die Irrtumsregelung des ABGB’ in W. Selb and H. Hofmeister (eds.), Forschungsband Franz Zeiller (Vienna, 1983), pp. 158 et seq.; E. A. Kramer, ‘Der Pflichtgedanke bei der Vertragsschließung: Zur vernunftrechtlichen Grundlage der Vertrauensdoktrin’ (1971) Österreichische Juristenzeitung, p. 121 at p. 125;

F.Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung (2nd edn, Göttingen, 1967), p. 293; H. E. Troje, ‘Ambiguitas contra stipulatorem’ (1961) SDHI 27 106.

63S. Pufendorf, De jure naturae et gentium, lib. IV, cap. I, §§ 4--5 (edn Francofurti/Lipsiae, 1759); S. Pufendorf, De officio hominis et civis iuxta legem naturalem, lib. I, cap. X, § 2 (edn: Cantabrigiae 1682; repr. New York 1937).

theory:64 because members of a society have to communicate in a single language in order to be able to live together then every member must be able to rely on the meaning of certain words and signs. In the law on mistake,65 this principle serves basically to excise the appellant’s claim that a mistake had been made, i.e. the claim that something else was intended than that which was expressed. In general contract theory, it allows a distinction to be made between intention and declaration of intent and the latter becomes the nucleus of contractual acts.66 This distinction later enabled Savigny to portray the declaration of intent as the product of the internal formation of intent. However, due to the fact that the act (declaration of intent) -- pursuant to the scholastic theory of acts -- is only attributable if it has been supported by a corresponding intention (intention of declaration), Savigny is able to transfer the problem of mistake into the dualism of intention and declaration: an operative mistake only occurs where someone declares that which he did not intend.67

Fair price and laesio enormis

From late Roman casuistry and the moral-theological theory of fair price, Canon and Roman common law developed an objective instrument to impose sanctions on breaches of precontractual duties of disclosure: if one party promises a performance the value of which is more than 100% of the value of the return performance, the promise (the contract) is invalid.68 The decisions of the Emperors Diocletian and Maximian69 from the years AD 285 and 293 that land acquisitions are invalid if the purchase price does not amount to even one half of the value of the land

64For more detail on this see Schermaier, ‘Europäische Geistesgeschichte’, pp. 78 et seq.

65On this see immediately below at pp. 57--58.

66This systematic advance was fully realised in the school of Christian Wolff; Wolff’s proposal was itself decisive but it was only Nettelbladt who formulated the new concept. Cf. for example: D. Nettelbladt, Systema elementare iurisprudentiae positivae germanorum communis (edn Halae, 1781) §§ 76 and 193; D. Nettelbladt, Systema elementare universae iurisprudentiae naturalis, pars I: Introductio in iurisprudentiam naturalem (edition: Halae Magdeburgicae, 1757) §§ 265 et seq.

67For the consequences of this starting point on the Pandect law on mistake see below at pp. 60--62.

68See generally for the history of laesio enormis for example, E. Bussi, La formazione dei dogmi di diritto privato nel diritto commune (2 vols., Padua, 1937), vol. II, pp. 37 et seq.; R. Dekkers, La lésion énorme (Paris, 1937); Zimmermann, Law of Obligations, pp. 259 et seq.; Becker, Die Lehre von der laesio enormis; Siems, Handel und Wucher, pp. 764 et seq.

69C. 4,44,2 and 8.

were reached on the basis of social and economic reasons.70 Since the middle ages71 jurists had recognised laesio enormis by relying on the theory of fair price as a moral-theological development of Aristotle’s iustitia commutativa.72

Hobbes already opined that prices are formed by the degree of demand73 and thereby vary from case to case. Thus, § 935 ABGB also restricts the possibility to dissolve a contract on the basis of laesio enormis (§ 934 ABGB) where someone intends to acquire a thing ‘owing to a special predilection for an extraordinary value’.74

Besides the debate which surrounds the question whether and how a ‘fair price’ (pretium verum/iustum) may be deduced at all, there lies behind the application of laesio enormis the justified concern to prevent or at least to impede usurious exploitation. Not without good reason do medieval sources75 already recognise dolus ex ipsa re (‘deceit in the thing itself’) in cases where someone allows a disproportionately high return performance to be promised in return for his own. Modern German

70Rural exodus, the perishing of farmers and high inflation may have motivated the decisions; for background information and the discussion concerning the authenticity of the sources, see: Zimmermann, Law of Obligations, pp. 259 et seq. Additionally, for example: K. Visky, ‘Die Proportionalität von Wert und Preis in den römischen Rechtsquellen des III. Jahrhunderts’ (1969) 16 Revue international des droits de l’antiquité, pp. 374 et seq.; K. Hackl, ‘Zu den Wurzeln der Anfechtung wegen laesio enormis’ (1981) 98 ZSSt, pp. 147 et seq.; A. J. B. Sirks, ‘La laesio enormis en droit Romain et Byzantin’ (1985) 53 Tijdschrift voor Rechtsgeschiedenis, pp. 291 et seq.; H. T. Klami, ‘“Laesio enormis” in Roman Law?’ (1987) 33 Labeo, pp. 48 et seq.; M. Pennitz, ‘Zur Anfechtung wegen laesio enormis im römischen Recht’ in M. Schermaier, M. Rainer and L. Winkel (eds.),

Iurisprudentia universalis. Festschrift für Theo Mayer-Maly (Vienna, 2002), pp. 575 et seq.

71Cf. on this: Gordley, Philosophical Origins, pp. 65 et seq., with commentary from Azo, Accursius, Hugolinus and Baldus; already in Brachylogus iuris civilis ,13,8) from the middle of the twelfth century the decisions from C. 4,44 are extended to all things capable of forming the subject of a transaction. Siems, Handel und Wucher, pp. 764 et seq. can follow an unbroken tradition of laesio enormis from the late Roman time up to the middle ages.

72Aristot. Eth. Nic. 5,3 f. (1131 a--1132 b); Thomas Aquinas, STh. II--II qu. 61. See on this, for example Gordley, Philosophical Origins, pp. 13 et seq.; T. Mayer-Maly, ‘Der gerechte Preis’ in G. Frotz (ed.), Festschrift Heinrich Demelius zum 80 Geburtstag (Vienna, 1973), pp. 139 et seq.

73T. Hobbes, Leviathan ch. XV in W. Molesworth English Works of Thomas Hobbes of Malmesbury (London, 1839), vol. III, p. 137.

74The concept of the pretium affectionis is already familiar to Roman jurists (Paul. D. 35,2,63 pr.), however in this form it may be traced back to C. A. von Martini, De lege naturali positiones in usum auditorii vindobonensis (Vienna, 1772), § 515 and § 521, and may probably be followed via Thomasius and Pufendorf to Hobbes.

75Azo, Summa Codicis, ad C. 2,20, n. 9; Rogerius, Summa Codicis, ad C. 4,44. Gordley, Philosophical Origins, p. 66, in this respect, cites as the oldest source: Vacarius, Liber pauperum, lib. IV, cap. LI, ad. D. 18,2,23,3.

case law couples the concept of laesio enormis -- although it has not been codified -- to elements of the usurious and therefore invalid transaction, by arguing that a gross disparity between value and price indicates that the advantaged party has exploited the weaknesses of the opposite party.76 Frequently, it is an advantage of information, disapproved of by law, which allows this party to obtain an especially good bargain. Today, as then, it is not the deduction of the ‘true value’ of the thing sold which presents the judge with a difficult hurdle to overcome but rather the question which information should be exchanged and which should not be.77 Its renaissance in German case law78 shows especially that the values which underlie laesio enormis cannot be reduced to the value--price relationship. The exploitation of the other party’s inexperience or position of necessity, i.e. the intention to exploit his weaknesses for the purpose of self-enrichment, is, however, difficult to prove. That said, controlling the contents of contracts cannot end in the mere observation of determined value--price relations. Both codification of laesio enormis79 and codification of elements constituting pure usury80 therefore demand judicial reduction or extension.

Late scholasticism and natural law (1550--1800)

The late scholastics, mostly Spanish theologians who wrote commentaries on Thomas Aquinas’ Summa theologica (therein mainly the quaestiones ‘De iustitia et iure’ of the Secunda secundae), developed from Thomas’ theory of imputation and Roman law81 a general theory of

76Most recently BGH, Judgment of 2 February 2000, VIII ZR 12/99 (reported in EBE 2000).

77See for example, Cic. off. 3,50 (above at fn. 26) on the one hand and AG (Amtsgericht) Coburg, NJW 1993, 938: in this case, someone had sold old notes and note books at a flea market. The obviously expert purchaser acquired for a few pennies several pages, among them an autograph of W. A. Mozart. The court did not allow the vendor to rescind the contract. Nevertheless, the judgment did not reduce the ratio decidendi to the crucial question of whether the purchaser was bound to have drawn the vendor’s attention to the high value of the autograph but proceeded -- in formal phrases derived from the case law of superior courts -- to the requirements of a rescission for mistake.

78See also T. Mayer-Maly, ‘Renaissance der laesio enormis?’ in C.-W. Canaris (ed.) Festschrift für Karl Larenz zum 80 Geburtstag am 23 April 1983 (Munich, 1983), pp. 395 et seq.

79§ 934 ABGB; art. 1674 French Civil Code.

80For example, § 138 II BGB; art. 1448 Codice civile it.

81In this, they primarily relied on the works of Italian glossators and commentators (mos Italicus). They do not appear to know the French school, in particular, contemporary humanism. In contrast to this, Jacobus Cuiacius for example, quotes the theologi, as he calls them ( J. Cuiacius, Commentarii in lib. XLIV Pauli ad edictum, ad D. 22,6,1; in: Opera omnia, Mutinae 1778--82, vol. V, 617 B).